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Law  Lib. 
KFC 

093  IN  THE 

A52 

1921     District  Court  of  tlie  United  States 

IN  AND  FOR  THE 
A^    

ABi  Southern  District  of  California, 

Norttiern  Division. 


Hillside  Water  Company,  a  Corpora- 
tion; The  Nevada-California  Power 
Company,  a  Corporation,  and  The 
Southern  Sierras  Power  Company, 
a  Corporation,  /  8-61  Equity 

Plaintiffs, 
vs. 

William  A.  Trickey  et  al.. 

Defendants. 

Before  Hon.  Albert  E.  Chandler,  Arbitrator. 


f— -TTzrTitEPfcY  BRIEF  FOR  DEFENDANTS. 

CENTER  ARCH  ^ 


S.!  L.  Carpenter, 
Vj  G.  Preston, 
Wj.  H.  \\' ADS  worth, 
JMIVFRSITY  OF  CAl  JFnnrii'-.RpRi^WELL  (!<:  Mathews, 

OS  ANGELE'  Mttorneys  for  Defendants. 


Parker  &  Stone  Co.,  Law  Printers,  232  New  High  St.,  Los  Angreles,  Cal. 


IP- 

1M 


TABLE  OF  CONTENTS. 

PAGE 

Map  of  Bishop  Creek  Irrigation  System Frontispiece 

Submission  to  Arbitration 4 

Bishop  Creek  5 

Bishop  Creek  Irrigation  System 8 

Claims   of   Plaintiffs 11 

Claims  of  Defendants 12 

Argument    15 

I.  The  Defendants  Are  Entitled  to  the  Quantity  of 
Water  Needed  for  Irrigation  and  Domestic  Uses  on 
Their  Lands,  Under  the  System  in  Vogue  Among 
Farmers  in  the  Locality 15 

II.  The  Appropriations  of  Defendants  Are  Prior  in  Time 
and  Right,  and  Are  Unimpaired  by  the  Alleged  Ad- 
verse Use  of  Plaintiffs 27 

(a)  The  Burden  of  Proof  Is  on  the  Claimant  of  the 
Adverse   Title    35 

(b)  Plaintiffs  Failed  to  Establish  Adverse  Title 38 

1.  Original  Hillside  Reservoir  and  Irrigation 

of  Hillside  Lands 40 

2.  Construction   and   Operation   of   Enlarged 
Hillside  and  Sabrina  Reservoirs 41 

3.  Fluctuations    52 

4.  Interruptions  of  an  Alleged  Adverse  Use..     56 

Summary   and   Discussion 57 

III.  Water  Rights  of  Defendants  Dixon,  Swall,  Gillespie, 
Powers,  and   Watterson   Bros 63 

IV.  Riparian  Rights  of  Defendants  Are  Not  Affected  by 
the  Alleged  Adverse  Use  of  Plaintiffs  Beyond  the 
Right  to  Divert,  Store  and  Release  for  Power  Opera- 
tions the  Surplus  and  Waste  Waters  of  the  Creek 70 


11 


PAGE 

V.  Defendants  Are  Not  Estopped 76 

YI.  Duty  of  Water 85 

Plaintiffs'   Case   85 

Defendants'   Case    100 

1.  The  Bishop  Creek  Water  Supply 101 

2.  The  Clausen  Duty  of  Water  Ts  Fully  Sustained 102 

3.  Long  Continued  Use  of  Appropriated  Water  Raises 

the  Presumption  of  Necessary  and  Beneficial  Use..  103 

4.  April  Duty,  as  Determined  by  Long  Continued  Use, 
Requires  a  Total  Duty  Sustaining  the  Clausen  Fig- 
ure     107 

5.  Reasonable  Duty  Is  Not  Only  Determined  by  Long 
Use,  but  Is  Enforced  by  Condition  of  Limited 
Water  Supply  and  L^nlimited  Irrigable  Land 107 

6.  Water  Usage  in  July,  1920,  on  the  Bishop  Creek 
Area,  Also  Sustains  the  Clausen  Figure  for  Proper 
Duty     - 108 

7.  Testimony  of  Shuey,  Eaton,  and  Watterson Ill 

8.  Lee  and  Clausen  Experiments 114 

VII.  The  Irrigators  From  China  Slough  Are  Entitled  to 
Relief  in  This  Case 116 

VIII.  Waste  122 

IX.  Extension  of  Stipulation  for  Arbitration 131 

X.  Additional    Reservoirs - 134 

XI.  Ways  That  Are  Dark  ;and  Tricks  That  Are  Vain......  137 

Appendix  "A" I 

Appendix  "B"  --  9 

Appendix  "C"   17 


Ill 


AUTHORITIES. 

PAGE 

Alta  Land  etc.  Co.  v.  Hancock,  85  Cal.  219 35 

American  Co.  v.  Bradford,  27  Cal.  360 Z7 

Anaheim  W.  Co.  v.  Semi-Tropic  W.  Co.,  64  Cal.  185 62 

Ball  V.  Kehl,  95  Cal.  606 37 

Barrows  v.  Fox,  98  Cal.  63 24 

Boggs  V.  Merced  Mining  Co.,  14  Cal.  279 78 

Brant  v.  Iron  Co.,  93  U.  S.  335 80 

Cal.  Pastoral  etc.  Co.  v.  Madera  etc.  Irr.  Co.,  167  Cal.  78....  104 

Campbell  v.  Ingraham,  Zl  Cal.  App.  728 103 

Cohen  v.  La  Canada  etc.  Co.,  142  Cal.  437 120 

Coogler  V.  Rogers,  25  Fla.  853 77 

Farnham  on  Waters  and  Water  Rights,  Vol.  3,  Sec.  675 22 

Gallatin  v.  Corning  Irr.  Co.,  163  Cal.  405 72 

Heilbron  v.  Canal  Co.,  75  Cal.  431 72 

Hough  V.  Porter,  98  Pac.  (Ore.)   1083 85 

Janke  v.  McMahon,  21  Cal.  App.  781 37 

Katz  V.  Walkinshaw,  141  Cal.  116 121 

Kroll  V.  Close,  82  Ohio  St.  190,  92  N.  E.  28 83 

Little  Walla  Irr.  LTnion  v.  Finis  Irr.  Co.,  124  Pac.   (Ore.) 

666 21,  38 

Lower  Latham  Ditch  Co.  v.   Louden  Irr.   C.   Co.,  60  Pac. 

(Colo.,  1900)  629 81 

Lux  V.  Haggin,  69  Cal.  255 78 

Miller  &  Lux  Co.  v.  Madera  Canal  etc.  Co.,  155  Cal.  59 70 

Miller  v.  Bay  Cities  Water  Co.,  157  Cal.  256 72 

Murphy  v.  Clayton,  113  Cal.   153 79 

Nephi  Irr.  Co.  v.  Vickers,  29  Utah  315,  81  Pac.  144..: 23 

No.  Cal.  Power  Co.  v.  Waller,  174  Cal.  377 87 

Rodgers  v.  Pitt,  89  Fed.  420 16,  26 

Rodgers  v.  Pitt,  129  Fed.  932 17,  18 

Shurtleff  v.  Kehrer,  163  Cal.  26 70 

Smiley  v.  MacDonald,  21  L.  R.  A.  (Neb.)  540 25 


IV 


PAGE 

Smith  V.  Duff,  102  Pac.   (Mont.)  981 36 

Smyth  V.  Neal,  49  Pac.  (Ore.)  850 80 

Stinson  Canal  &:  Irr.  Co.  v.  Lemoore  Canal  &  Irr.  Co.,  188 

Pac.  77  104 

Union  Mill  &  Mining  Co.  v.  Dangberg,  81  Fed.  73 62 

United  States  v.  Bennett,  125  C.  C.  A.  186,  217  Fed.  524....  19 

Wiel  on  Water  Rights,  Sec.  481 23 

Wiel  on  Water  Rights,  Sec.  588 62 

Wiel  on  Water  Rights,  Sec.  579 36 


IB~ 


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''•■  -■■■ 


IN  THE 

District  Court  of  tlie  United  States 

IN  AND  FOR  THE 

Southern  District  of  California, 

Northern  Division. 


Hillside  Water  Company,  a  Corpora- 
tion; The  Nevada-California  Power 
Company,  a  Corporation,  and  The 
Southern  Sierras  Power  Company, 
a  Corporation,  )  B-^'  Equity 

Plaintiffs, 
vs. 

William  A.  Trickey  et  al.. 

Defendants. 

Before  Hon.  Albert  E.  Chandler,  Arbitrator. 


REPLY  BRIEF  FOR  DEFENDANTS. 

The  questions  to  be  determined  by  the  arbitrator  in 
this  case  are  raised  under  the  pleadings  of  the  parties, 
consistinj:^  of  plaintiffs'  amended  complaint,  defendants' 
answer  and  cross-bill,  and  plaintilTs'  answer  to  cross- 
bill. 

The  immediate  occasion  for  commencing  the  suit  was 
an  alleged  trespass  by  certain  of  the  defendants,  on 
June  11,  1919,  when,  as  charged  in  (he  complaint,  snch 


—  4  — 

defendants  visited  the  structure  known  as  the  Hillside 
Reservoir,  belonging-  to  plaintiff,  Hillside  Water  Com- 
pany, and  located  on  the  South  Fork  of  Bishop  Creek, 
in  Inyo  county,  California,  and  wrongfully  and  with 
force  and  violence,  and  without  the  consent  of  the 
plaintiffs,  ejected  the  attendants  at  such  reservoir, 
broke  the  locks  on  the  valves  of  the  reservoir,  thereby 
releasing  approximately  50  second  feet  of  water,  and 
continued  such  alleged  unlawful  acts  until  June  14, 
1919,  when  such  defendants  were  served  with  an  order 
of  said  court  issued  upon  the  complaint  herein,  and  re- 
straining them  from  further  acts  of  trespass  in  the 
premises. 

Submission  to  Arbitration. 

Thereafter,  on  July  10,  1919,  at  a  meeting  of  attor- 
neys and  other  representatives  of  the  then  parties  to 
the  suit,  at  Bishop,  California,  a  stipulation  under 
which  the  case  was  agreed  to  be,  and  was,  submitted 
to  arbitration,  was  drawn.  [Tr.  p.  a.]  Such  stipula- 
tion recites  that  it  is  desirable  "that  the  rights  of  all 
interested  parties  and  claimants  in  and  to  the  waters 
flowing  in  Bishop  Creek,  in  Inyo  county,  California, 
be  finally  determined  and  adjudicated;''  also,  that  such 
rights  "can  be  best  determined  *  *  *  by  the  refer- 
ence of  the  entire  controversy  *  *  *  to  an  impartial 
arbitrator  for  investigation  and  determination." 

The  stipulation  which  was  intended  for  signature  b}' 
"all  interested  parties,"  contains  provisions  to  the  fol- 
lowing effect: 


That  the  subscribers  thereto,  not  ah-cady  joined  in 
the  action,  should,  by  amendment  of  the  complaint,  be 
made  defendants. 

That  the  complaint  be  also  so  amended  as  to  include 
all  claims  of  the  plaintiffs  with  reference  to  the  reser- 
voir of  The  Nevada-California  Power  Company,  known 
as  No.  1  or  Sabrina  Reservoir,  and  all  claims  of  the 
Hillside  Water  Company  to  the  waters  of  Bishop 
Creek,  or  its  tributaries,  for  irrigation  and  domestic 
uses. 

That  the  defendants  named  in  the  amended  complaint 
file  and  serve  their  answer,  or  answer  and  cross-com- 
plaint. 

That  the  entire  controversy,  under  the  pleadings,  be 
submitted  to  Albert  E.  Chandler  as  arbitrator,  with 
authority  to  take  evidence,  to  investigate  and  deter- 
mine all  issues  of  law  and  fact,  and  to  formulate  the 
decree  to  be  entered  in  the  case ;  and  that  no  appeal  will 
be  taken  from  such  decree. 

Bishop  Creek. 

Bishop  Creek,  the  principal  tributary  of  Owens 
River,  rises  in  the  high  Sierras  in  the  northwesterly 
portion  of  Inyo  county,  and  flows  thence  in  a  general 
northeasterlv  direction,  joining  the  river  about  five 
miles  easterly  from  the  town  of  Bishop. 

The  creek  basin  may  be  divided  into  three  ])arts, 
namely:  first,  the  upper  part,  lying  above  the  elevation 
of  eight  thousand   feet,   and   comprising  the   principal 


water-shed  of  the  stream;  second,  the  middle  part,  or 
gorge,  lying  between  the  elevations  of  eight  and  five 
thousand  feet;  and  third,  the  lower  part,  lying  below 
the  point  of  emergence  from  the  mountains,  and  con- 
sisting of  an  extensive  delta  cone  traversed  by  the 
branches  of  the  stream,  and  embracing  the  farming 
region  in  which  the  town  of  Bishon  and  the  lands  of 
the  defendants  are  situated. 

The  upper  part  of  the  Bishop  Creek  Basin  abounds 
in  lakes,  streams  and  meadows,  making  an  ideal  shed 
for  holding  back  the  waters  resulting  from  the  melting 
of  the  snows.  At  the  sites  of  two  of  these  lakes,  viz., 
Sabrina,  on  the  middle  fork,  and  South  Lake  on  the 
south  fork,  storage  reservoirs  have  been  constructed 
bv  power  companies,  with  a  combined  capacity  of  a 
little  over  twenty-one  thousand  acre  feet.  The  eight 
thousand  point  elevation  on  the  stream  is  about  eight 
miles  from  its  highest  source.  The  middle  part  of  the 
stream,  which  is  about  seven  miles  in  length,  is  fed  by 
the  early  melting  snows.  The  principal  natural  tribu- 
tary in  this  stretch  is  Coyote  Creek.  The  lower  part  of 
the  basin,  embracing  the  delta  of  the  stream  and  ex- 
tending down  to  the  river,  is  about  nine  miles  in  length. 

The  Bishop  Creek  delta  cone  has  been  built  up  by 
erosions  from  the  mountain  sides,  and  naturally  ex- 
hibits a  definite  grading  of  the  materials  and  soils  com- 
prising this  area.  The  cone  has  a  fall  of  800  feet  be- 
tween the  mouth  of  the  canyon  and  Owens  River.  The 
area  lying  above  Owens  River  Canal,  which  intersects 


—  7  — 

the  cone  about  three  miles  below  the  mouth  of  the  can- 
yon, is  a  very  coarse,  granitic  soil,  requiring  abnormally 
large  quantities  of  water  for  the  raising  of  crops.  As 
the  slope  is  descended,  finer  soils  are  encountered  and 
less  water  is  needed  for  irrigation  purposes. 

Owing  to  the  excessive  slope  of  the  delta  cone,  even 
the  lower  portions  have  been  unable  to  hold  the  very 
fine  detritus,  resulting  in  its  being  carried  further  down 
the  Owens  Valley  and  deposited  in  accordance  with  its 
w^eight  as  far  south  as  Owens  Lake.  Due  to  these  con- 
ditions, even  the  material  in  the  lower  portion  of  the 
section  embraced  in  the  present  controversy  is  quite 
porous  and  is  not  fairly  comparable  to  the  silty  soils  of 
the  flat  areas  in  other  California  valleys,  such  as  Im- 
perial and  San  Joaquin. 

The  Owens  Valley,  topographically,  is  quite  isolated, 
and  is  more  or  less  detached  from  the  rest  of  Califor- 
nia. Settled  first,  about  sixty  years  ago,  it  retained 
until  comparatively  recently  the  characteristics  of  a 
pioneer  community.  The  Carson  &  Colorado,  a  narrow 
gauge  railroad,  from  the  Carson  Valley  in  Nevada,  was 
built  in  the  earlv  days  to  serve  the  mining  and  soda  in- 
dustries in  the  vicinity  of  Owens  Lake.  It  was  not 
until  the  decline  of  the  silver  mining  industry  in  the 
early  70s  that  any  considerable  attention  was  given  to 
farming.  The  early  settlers  naturally  turned  lo  the 
streams  on  the  west  side  of  the  valley,  and  the  fact 
that  these  streams  occupied  very  shallow  channels,  made 
it  possible  for  the  farmers,  easily  and  with  little  cost, 
to  divert  the  waters  on  to  the  adjacent  soil.     Des])ile 


—  8  — 

this  advantage,  the  lack  of  transportation  faciHties  and 
markets  for  the  products  of  the  farms,  made  develop- 
ment exceedingly  slow  and  tedious.  It  was  not  until 
1910  that  Owens  Vallc}^  was  tapped  by  a  broad-gauge 
railroad  extending  into  Los  Angeles,  but  the  farms  of 
the  defendants  are  located  sixty  miles  from  this  im- 
proved facility. 

Bishop  Creek  Irrigation  System. 

This  system  has  been  in  operation  about  fifty  years. 
It  was  old  when  the  plaintiff  companies  were  organized. 
It  is  a  simple  system,  which  the  early  settlers,  conform- 
ing to  the  practice  then  in  vogue,  laid  out  and  built 
upon  the  principle  of  economy  of  construction  and 
maintenance.  It  was  a  proper  and  legitimate  method  of 
handling  Bishop  Creek  supply  until  the  power  com- 
panies, having  established  their  plants  on  the  stream 
and  having  found  that  their  interests  in  providing  cheap 
power  for  other  communities,  in  this  state  and  in 
Nevada,  required  an  encroachment  upon  the  rights  of 
irrigation,  suddenly  assumed  a  hostile  attitude  toward 
the  farmers,  began  to  assert  adverse  rights  and  in  sup- 
port of  their  claims  initiated  an  attack  upon  the  effi- 
ciency of  the  system. 

The  system  of  ditches  serving  the  area  under  Bishop 
Creek  is  composed  of  three  main  carriers,  namely, 
North  and  South  Forks  of  Bishop  Creek  and  Indian 
Ditch.  Indian  Ditch  serves  practically  all  of  that  ])art 
of  the  system  lying  south  of  the  south  line  of  sections  1, 


—  9  — 

2,  3  and  4  of  township  7  south,  ranj^e  32  east,  and 
above  the  Bishop  Creek  Canal.  North  and  South 
Forks  serve  the  remainder  of  the  area  above  Bishop 
Creek  Canal,  and  each  a  segregated  area  below  the 
canal.  China  Slough  supplies  about  400  acres  below 
the  Bishop  Creek  Canal.  Powers'  Ditch,  which  for- 
merly connected  directly  with  the  creek,  but  for  several 
years  past  has  been  taking  out  of  the  pressure  line  be- 
tween plants  5  and  6  of  the  j^ower  companies,  at  a 
point  about  a  half  mile  above  the  heading  of  Indian 
Ditch,  supplies  lands  of  Powers  and  Watterson  Broth- 
ers, which  are  situated  apart  from  the  main  Bishop 
Creek  area.  From  these  main  carriers,  various  later- 
als extend  to  serve  the  different  ranches. 

The  system  has  not  remained  in  its  original  condi- 
tion, but  here  and  there  shows  substantial  improvements 
in  the  way  of  concrete  headworks,  flumes,  etc. 

The  main  irrigated  area  is  very  irregular  in  outline, 
but,  on  an  average,  is  about  two  miles  wide  and  seven 
miles  long,  with  a  difference  in  elevation  between  the 
highest  and  lowest  diversion  of  about  500  feet.  The 
main  carriers  of  the  system  arc  advantageously  located 
with  reference  to  the  territory  to  be  served,  and,  gen- 
erally speaking,  the  distributing  laterals  are  well  placed 
and  give  efficient  service. 

The  method  of  irrigation  practiced  on  Bisho])  Creek 
is  the  notation  system.  A  zanjero  is  employed  whose 
dutv  it  is  to  so  handle  and  distribute  tlie  water,  in 
varying  heads,  as  will  best  meet  the  irrigation  re(|uire- 
ments.     It  has  been  demonstrated  that  a  comparatively 


—10— 

large  head  of  water,  so  handled  as  to  get  over  a  field 
quickly,  will  accomplish  much  more  than  a  like  amount 
running  as  a  continuous  flow.  This,  in  great  part,  is 
due  to  the  heavy  gradients  and  exceeding  porosity  of 
the  soil. 

Under  the  rotation  system,  the  area  must  be  handled 
as  a  unit,  or,  in  other  words,  as  one  large  ranch.  This 
is  accomplished  on  Bishop  Creek  through  neighborly 
understanding  and  without  legal  incorporation  central- 
izing control.  With  the  employment  of  large  irrigating 
heads,  there  naturally  is  run-ofl,  but  this  is  not  to  be 
considered  as  waste.  The  different  ranches  have 
ditches  at  the  lower  ends,  which  either  carry  the  excess 
water  back  to  the  creek  or  pass  it  through  ditches  to 
lower  users. 

By  reason  of  varying  crops  the  loAver  user,  under  the 
Bishop  Creek  system,  is  generally  able  to  handle  the 
run-off  from  his  neighbor  above.  If  the  supply  is  not 
sufficient  to  get  over  his  ground  quickly  it  is  augmented 
by  the  zanjero  from  one  of  the  main  laterals. 

Large  and  apparently  excessive  individual  usage 
under  the  rotation  system  does  not,  as  a  rule,  involve 
any  actual  waste,  as  the  same  water  is  used  over  and 
over  again  as  it  descends  from  the  upper  to  the  lower 
ranches.  The  evidence  showed  that  the  individual 
usage  in  July,  1920,  amounted  to  about  175  second  feet, 
or  1.6  acre  feet  per  acre,  while,  taking  the  irrigated 
area  as  a  whole,  the  amount  of  water  actually  consumed 
was  about  106  second  feet,  or  .95  acre  feet  per  acre. 


—11— 

As  an  aid  to  the  presentation  of  this  case,  we  have 
taken  the  Hberty  to  insert  at  the  outset  of  our  brief  a 
map,  based  on  the  evidence,  of  the  area  involved  in  the 
present  controversy. 

Claims  of  Plaintiffs. 

The  claims  of  plaintiffs  under  their  pleadings,  as 
outlined  by  their  counsel  at  the  outset  of  the  hearing 
[Tr.  pp.  1-7]  are,  in  eifect,  as  follows: 

(1)  The  right  to  divert  and  store  in  the  Hillside 
Reservoir,  which  has  a  capacity  of  approximately 
14,000  acre  feet,  and  in  No.  1,  or  Sabrina  Reservoir, 
which  has  a  capacity  of  approximately  7,600  acre  feet, 
sufficient  water  from  Bishop  Creek  to  fill  those  reser- 
voirs during  the  period  of  high  stream  flow  in  each 
year,  and  to  release  the  waters  so  stored  at  such  times, 
in  such  quantities,  and  in  such  manner,  as  may  be  re- 
quired for  the  proper  operation  of  the  electric  generat- 
ing plants,  now^  five  in  number,  of  the  two  plaintiff 
power  companies  located  on  that  creek,  subject  only  to 
the  limitation  that  during  the  irrigating  season,  plain- 
tiffs shall  not,  through  such  storage,  reduce  the  flow  of 
water  in  Bishop  Creek  so  that  the  average  daily  flow  of 
the  stream  available  for  defendants'  use  is  less  than  90 
second  feet;  such  right  being  as.serted  on  these  grounds; 

(2)  Appropriations  of  the  waters  of  the  creek  over 
and  abf)ve  the  amounts  then  appropriated  and  benefi- 
ciallv  used  bv  other  ])arties. 


—12— 

(3)  Estoppel  of  defendants,  through  laches  and  ac- 
quiescence, to  question  such  right. 

(4)  Adverse  use,  for  more  than  ten  years,  for  the 
operation  of  the  plants  of  the  plaintiff  power  com- 
panies. 

Plaintiff  Hillside  Water  Company  also  claims  the 
right,  through  like  adverse  use,  to  take  and  utilize  the 
waters  of  the  creek  for  irrigation  purposes  on  several 
thousand  acres  of  land  owned  by  the  company  on  or 
adjacent  to  the  creek,  as  follows: 

a.  Sufficient  of  the  natural  flow  to  properly  irrigate 
700  acres  of  land. 

b.  All  water  drawn  from  the  storage  in  the  Hillside 
Reservoir  during  each  irrigating  season. 

c.  One-third  of  the  stored  waters  of  the  Sabrina 
Reservoir  after  passing  through  the  power  plants. 

d.  One-third  of  the  entire  diverted  flow  of  Coyote 
Creek. 

e.  All  of  the  waters  of  Birch  Creek  diverted  into 
Bishop  Creek,  subject  only  to  the  rights  therein,  appur- 
tenant to  what  is  referred  to  in  the  record  as  the  '']oe 
Diaz  Ranch"  and  lands  of  the  Indian  Jake  Shaw. 

f.  All  the  waters  of  McGee  Creek  diverted  into 
Bishop  Creek. 

Claims  of  Defendants. 

The  water  rights  asserted  by  defendants  in  Bishop 
Creek  are  partly  riparian  and  partly  by  appropriation. 
The  riparian  holdings  of  defendants,  as  established  by 


—13— 

stipulation  of  the  parties,   filed  in  evidence  as  Plain- 
tiffs' Exhibit  "1,"  are  as  follows: 

NAME  ACRES 

J.  A.  Cashbaugh  87.4 

Lucas  Cesprini  7.5 

Dora  C.  Coats  22.9 

Robert  O  and  Nora  Cox  140 

John  A.  Dehy  400 

Chas.  R.  Dugan  140 

Claude  R.  Ford  6.5 

Geo.  W.  Garner  132 

J.   M.   Garner  132 

John  G.  Henderson  80 

Ethel  R.  Irwin  79 

Charles  and  Ritta  M.  Johnson  40 

Phillip  P.  Keough  7^ 

Paul  E.  Lodge  28 

Mary  E.  B.  Leidy  240 

Lloyd  Marquam  80 

P.  D=  Mason  and  J.  R.  Alcorn  160 

Allen    Matlick  220 

Le  Roy  McLaren  18 

Wm.  McLaren  Est.  139 

H.  G.  Plumley  155 

Yandell  Rowan  64 

Wm.  Rowan  160 

Mary  A.  Serventi  6 

J.    R.    Shipley  58.5 

George  R.  Shuey  130 


—14— 

Horace  M.  Smith  80 

Lloyd  M.  Smith  33.8 

I.  E.  Squires  27.7 

John  A.  Summers  12 

Thos.  Summers  200 

Wm.  Symons  160 

Tabor  &  Allison  12.5 

Mrs.  E.  A.  Taylor  5 

T.  R.   C.  Teare  147.5 

Thos.  Thomson,  Jr.  38.5 

AV.  J.  Tinder  20 

J.  S.  Turner  118.5 

L.  C.  Varney  135 

W.  H.  Wells  56 

E.   P.   White  7 

Thos.  Williams  220.8 


Total  4078.1 

The  aggregate  length  of  the  main  stream  and  its  two 
branches,  within  the  limits  of  the  territory  irrigable 
therefrom,  is  approximately  15  miles,  and  of  the  total 
frontage  not  less  than  95%  is  occupied  by  lands  of  the 
defendants. 

The  defendants,  in  their  cross-bill,  set  up  separately 
their  rights  in  the  stream  by  appropriation.  These 
rights,  as  asserted,  include  the  diversion  and  use  by 
defendants,  respectively,  and  their  predecessors  in  in- 
terest, of  various  quantities  of  water  from  the  stream 
for  the  purposes  of  irrigation,  domestic  use  and  water- 
ing  live   stock.      In   the   case    of    defendant   Town    of 


—15— 

Bishop,  it  is  alleged  tliat  the  municipality,  its  grantors 
and  predecessors,  for  more  than  30  years  past,  have 
been  the  owners  of  the  right  to  divert  and  take,  for  the 
purpose  of  sprinkling  roads  and  streets,  flushing  sew-, 
ers,  extinguishing  fires  and  other  municipal  purposes, 
and  for  the  use  of  its  inhabitants  for  irrigation  and 
domestic  use  and  watering  live  stock,  on  lands  em- 
braced within  the  limits  of  the  municipality,  500  miner's 
inches  of  the  waters  of  the  creek. 

ARGUMENT. 

I. 

The  Defendants  Are  Entitled  to  the  Quantity  of 
Water  Needed  for  Irrigation  and  Domestic 
Uses  on  Their  Lands,  Under  the  System  in 
Vogue  Among  Farmers  in  the  Locality. 

This  proposition  is  fully  supported  by  the  authorities 
but  does  not  command  the  assent  of  counsel  for  plain- 
tiffs. They  urge,  as  we  understand  their  agument,  that 
defendants  individuallv  and  collectively  are  excessively 
wasteful  and  extravagant  in  their  use  of  water  and  that 
the  system  of  irrigation  in  vogue  in  the  Bishop  region 
is  inefficient  and  antiquated  and  recjuires  much  more 
water  to  supplv  irrigation  and  domestic  needs  than  a 
modern  system.  Counsel  do  not  take  the  position  that 
the  defendants,  or  any  of  them,  in  their  use  of  water, 
do  not  conform  to  the  existing  system  of  irrigation  in 
such  region,  but  they  denounce  the  system  as  waste! ul 
and  extravagant  compared  to  up-to-date  methods  em- 


—16— 

ployed  in  other  sections,  and,  therefore,  as  counsel  rea- 
son, the  rights  of  the  individual  users  are  limited  by 
their  requirements  under  an  improved  system.  We 
admit,  that  if  an  irrigator  consumes  more  u^ater  than  is 
reasonably  necessary  under  the  existing  system,  then 
he  may  be  charged  with  legal  waste  and  the  excess 
may  be  subjected  to  appropriation  by  another.  If, 
however,  such  use  conforms  to  the  existing  system, 
then  subsequent  appropriators  like  the  plaintiffs  in  this 
case,  may  not  indict  the  system  so  as  to  lay  the  basis 
for  hostile  appropriations  in  their  own  behalf.  In 
other  words,  the  defendants  in  this  case  must  be  judged 
according  to  the  system  in  vogue  in  the  locality  where 
their  farming  operations  are  carried  on,  and  not  by  an 
ideal  system  or  by  a  system  in  vogue  in  other  parts  of 
the  country. 

And  now  for  the  authorities  to  sustain  our  conten- 
tion. 

Rodgers  v.  Pitt,  89  Fed.  420,  was  a  suit  to  enjoin  the 

diversion  of  water  from  Humboldt  River.     The  court, 

after  considering  the  right  of  the  plaintiff  to  maintain 

the  suit  or  to  obtain  an  injunction,  says: 

"It  only  remains  to  determine  the  amount  of 
water  required  to  irrigate  the  land  under  the  sys- 
tem in  vogue  among  the  farmers  in  Lovelock  Val- 
ley. The  system,  briefly  stated,  is  that  of  using 
irrigating  ditches,  generally  of  uniform  size  and 
dimensions,  and  flooding  the  land,  controlling  and 
changing  the  water  at  different  times  during  the 
day,  and  allowing  it  to  take  care  of  itself  during 
the  night,  letting  it  run  where  it  is  supposed  it  will 


—17— 

do  the  most  good  and  least  harm.  This  system  is, 
perhaps,  an  easy  and  inexpensive  one,  but  must 
necessarily  result  in  a  waste  of  the  water  which 
might,  by  the  adoption  of  other  systems — more  ex- 
pensive at  the  start,  but  cheaper  in  the  end — be 
avoided,  and  enable  the  farmers  to  irrigate  a  much 
greater  quantity  of  land  with  a  less  amount  of 
water.  But  the  system  referred  to  is  in  universal 
use  by  the  farmers  in  that  district  of  country,  and 
it  is  the  duty  of  the  court,  in  the  absence  of  any 
law  upon  the  subject,  to  determine  the  amount  of 
water  by  a  reference  to  the  system  used.'" 

In  Rodger s  v.  Pitt,  129  Fed.  932,  the  last  of  a  series 
of  cases  relating  to  the  same  general  controversy,  one 
of  which  is  cited  above,  the  court  says,  upon  the  ques- 
tion of  the  amount  of  water  to  which  the  complainant 
was  entitled: 

"What  amount  of  water  is  necessary  to  properly 
irrigate  an  acre  of  land?  These  questions  were 
involved  and  disposed  of  on  the  preliminary  hear- 
ing (89  Fed.  423),  and  must  now  be  disposed  of 
by  the  weight  of  the  testimony  given  upon  the 
trial  of  the  case.  No  additional  facts  were  elicited 
at  the  trial  which  demand  any  change  in  the  views 
that  WQVQ  then  expressed.  The  amount  of  water 
necessary  to  irrigate  the  lands  depends,  in  a  greater 
or  less  degree,  upon  the  general  character  of  the 
soil  in  the  locality  where  the  lands  are  situated. 
The  system  in  vogue  among  the  farmers  in  Love- 
lock Valley  is  that  of  using  irrigating  ditches,  gen- 
erally of  uniform  size  and  dimensions,  varied  only 
by  changed  conditions,  and  turning  the  water 
through  these  ditches  over  the  land,  controlling  and 
changing  the  water,  as  occasion  requires,  at  dif- 
ferent times  during  the  day,  and  letting  it  run  and 
take  care  of  itself  during  the  night,  but  arranged 


—18— 

where  it  is  believed  it  will  do  the  most  good  and 
least  harm.  Upon  the  preliminary  hearing  it  was 
said:  'It  is  the  duty  of  the  court,  in  the  absence  of 
any  law  upon  the  subject,  to  determine  the  amount 
of  w^ater  by  a  reference  to  the  system  used.'  This 
necessaril}'  implied  that  the  system  was  a  proper 
one  under  all  the  existing  conditions." 

In  the  course  of  the  hearing,  the  question  was  raised 
from  time  to  time,  or  if  not  definitely  raised,  was  as- 
sumed to  exist,  as  to  whether  irrigation  for  pasture  was 
a  beneficial  use.  This  point  is  decided  in  Rodgers  v. 
Pitt,  129  Fed.  932,  where  it  is  stated: 

"In  the  estimates  made  by  the  defendants  of  the 
number  of  acres  under  cultivation  on  complainant's 
land,  they  apparently  overlook  the  plowed  ground, 
and  ignore  the  number  of  acres  of  pasture  land  or 
wild  grass  that  were  irrigated.  It  is  in  effect 
claimed  that  the  use  of  water  for  pasture  and  for 
wild  hay  was  not  for  a  beneficial  purpose.  The 
courts  have  held  otherwise.  In  Pyke  v.  Burnside 
(Idaho),  69  Pac.  477,  it  was  expressly  held  that 
where  one  constructs  a  ditch  and  conducts  water 
upon  his  land  year  after  year,  and  permits  the 
same  to  spread  out  over  wild  hay  land  for  the  pur- 
pose of  making  hay  or  using  such  land  for  pas- 
ture, he  thereby  secures  the  right  to  the  use  of  suf- 
ficient water  to  irrigate  such  land,  provided  the 
amount  of  water  so  used  is  sufficient  for  that  pur- 
pose ;  such  use  being  a  beneficial  one.  In  Smvth  v. 
Neal,  31  Or.  105,  109,  49  Pac.  850,  851,  the^court 
said: 

'It  seems  to  have  been  a  conceded  proposi- 
tion that  the  use  of  water  for  the  irrigation 
of  these  wild  meadow  lands  was  for  a  useful 
purpose,  and  that  such  irrigation  was  neces- 
sarv  for  the  production  of  gra;^s  in  sufficient 


—19— 

quantities  to  be  gathered  and  cured  as  feed  for 

stock.' 
The   theory  advanced   by   defendants,   that   the 
rights   of   complainant    should   be   limited   to    the 
amount  of  lands  actually  cultivated  for  crops  and 
grain,  cannot  be  sustained." 

UniM  States  v.  Bennett,  125  C.  C.  A.  186,  207  Fed. 
524,  L.  R.  A.  1916B,  1010,  was  an  action  in  equity, 
brought  by  the  United  States  in  the  District  Court  of 
the  United  States  for  the  Eastern  District  of  Wash- 
ington, to  restrain  the  defendants  from  diverting  from 
the  Salmon  River,  in  that  state,  an  amount  of  water  in 
excess  of  2y2  acre  feet  per  acre  for  certain  lands  owned 
by  the  defendants,  and  described  in  the  complaint, 
amounting  to  62.82  acres. 

The  government,  proceeding  under  the  provisions  of 
the  Federal  Reclamation  Act,  appropriated  all  of  the 
unappropriated  waters  of  Salmon  River  in  the  county 
of  Okanogan,  in  the  state  of  Washington,  for  the 
Okanogan  Irrigation  Project,  and  constructed  the  nec- 
essary works  for  the  utilization  of  the  waters  so  appro- 
priated for  irrigation  purposes  in  the  vicinity. 

During  the  year  1911,  the  amount  of  water  available 
from  all  sources  of  supply  for  the  benefit  of  consumers 
under  the  Okanogan  project,  was  found  to  be  insutli- 
cient,  and  there  was  a  shortage  of  water  during  the  lat- 
ter portion  of  the  irrigating  season. 

The  bill  of  complaint  alleged  that  the  lands  of  the 
defendants  susceptible  of  irrigation,  <1()  not  exceed  50 
acres;  that  such  lands  required  not  more  than  2j/2  acre 


—20— 

feet  per  acre  of  water  to  sufficiently  and  properly  irri- 
gate the  same;  that  a  use  of  a  greater  amount  of  water 
is  not  only  unnecessary,  but  absolutely  detrimental  to 
the  growing-  of  crops  thereon;  that  notwithstanding 
this,  defendants  have  unnecessarily,  wastefully,  and 
uselessly  diverted,  consumed,  and  used  of  and  from  the 
waters  of  the  Salmon  River  11  acre  feet  of  water  per 
acre  in  each  season,  thereby  depriving  the  plaintiff  of 
water  which  it  could,  and  otherwise  would  have  used 
for  the  necessary  and  beneficial  purposes  mentioned  in 
the  complaint. 

The  trial  court  heard  the  testimony  in  open  court  and 
entered  a  decree  allowing  defendants  1^  cubic  feet  of 
water  per  second,  or  an  equivalent  to  7.02  acre  feet  for 
the  season,  to  be  measured  at  the  point  of  diversion 
from  the  Salmon  River. 

The  Circuit  Court  of  Appeals  declared : 

"We  do  not  think  the  water  allowed  the  defend- 
ants by  the  decree  is  in  excess  of  what  is  required 
for  such  land  according  to  the  usual  course  of  hus- 
bandry in  which  the  defendants  are  engaged." 

Also: 

"But  we  know  of  no  law  requiring  the  appro- 
priator  of  water  to  change  his  system  of  husbandry 
to  conform  to  some  other  system  where  less  water 
is  required.  In  other  words,  we  know  of  no  law 
requiring  the  defendants  in  this  case  to  cease 
diverting  water  for  the  irrigation  of  alfalfa  or 
other  forage  crops  heretofore  grown  on  their  land, 
and  compelling  them  to  reduce  their  diversion  to 
that  required  for  an  orchard  or  other  use  requir- 
ing less  water;  nor  do  we  know  of  any  law  requir- 


—21— 

ing  them  to  reduce  their  appropriation  of  water  to 
the  quantity  required  for  a  less  gravelly  and  por- 
ous soil  simply  because  there  is  a  better  soil  in  the 
neighborhood  requiring  less  water.  \Mial  is  re- 
quired of  the  appropriator  is  that  he  shall  not 
w'aste  the  water  appropriated,  l^ut  shall  put  it  to  a 
beneficial  use  in  accordance  with  the  requirements 
of  the  husbandry  in  which  he  is  engaged.  In  our 
opinion  the  decree  of  the  court  below  conforms  to 
such  requirements." 

Little  Walla  Irr.  Union  v.  Finis  Irr.  Co.,  124  Pac. 
(Or.)  666. 

This  suit  w^as  brought  for  the  purpose  of  determin- 
ing amounts  and  priorities  of  water  rights  on  the  Walla 
Walla  River.  Among  the  principal  questions  involved 
were  the  duty  of  water  for  irrigation  purposes  and 
economical  methods  of  use. 

The  settlers,  by  taking  advantage  of  the  United 
States  statute  of  1866,  had  acquired  title  to  the  use  of 
water,  at  least  to  the  amount  needed  and  used,  and  the 
adverse  claimants  in  such  litigation  endeavored  to  re- 
duce the  amount  to  which  they  supposed  their  title  was 
perfect,  on  the  principle  of  reasonable  and  economical 
use.    The  court  says : 

"Their  metliods  of  use  have  been  those  which 
w^ere  the  least  expensive,  and,  no  doubt,  to  some 
extent  were  extravagant,  yet  they  cannot  be  ex- 
pected to  install  methods  now  that  might  reduce 
to  a  minimum  the  amount  of  water  necessary,  at 
a  cost  that  would  a1)snrb  tlie  ])rorits." 

Further: 

"A  great  saving  in  the  amount  of  water  may  be 
possible  by  adopting  the  government   reclamation 


—22— 

methods  (cited  as  authority  here)  of  cement 
ditches,  to  prevent  both  seepage  and  evaporation, 
with  experts  to  follow  and  apply  the  water,  by 
which  it  is  contended  that  a  half  inch  to  the  acre  is 
sufficient;  but  at  this  time  it  is  to  some  extent  an 
experiment  whether  the  investment  on  that  basis 
will  be  remunerative,  at  least  on  the  small  farms." 

Again : 

"Furthermore,  these  government  projects  are 
for  a  new  and  an  original  use  of  water,  upon 
which  the  government  can  impose  such  terms  as  it 
may  see  fit.  Here  the  users  have  acquired  the  land 
and  applied  the  water,  which  are  valuable  under 
present  conditions,  and  their  rights  therein  are 
vested,  and  we  can  require  them  only  to  use  the 
water  economically  and  reduce  the  quantity  to  a 
minimum  by  reasonable  and  cheap  methods  ac- 
cording to  their  situation  and  condition." 

Farnham.  on  Waters  and  Watei'-  Rights,  in  Vol.  3, 

Sec.  675,  says: 

"While  a  prior  appropriator  of  water  can  claim 
only  the  amount  which  is  necessary  to  supply  his 
needs,  and  can  permit  no  water  to  go  to  waste,  he 
is  not  bound  to  adopt  the  best  means  for  utilizing 
the  water  or  take  extraordinary  precautions  to 
prevent  waste.  He  is  entitled  to  make  a  reasonable 
use  of  the  water  according"  to  the  custom  of  the 
locality,  and,  as  long  as  he  does  so,  other  persons 
cannot  complain  of  his  acts.  The  amount  of  water 
required  by  an  appropriator  to  irrigate  his  lands 
should  be  determined  by  reference  to  the  system 
used,  although  it  results  in  a  waste  of  water  which 
might  be  avoided  bv  the  adoj^tion  of  another  svs- 
tem." 


—23— 

J  J' id  on  Water  Rights  in  the  Western  States,  3i-(l 
Ed.  Sec.  481,  says: 

"In  determining  the  amount  of  water  which  a 
user  appHes  to  a  beneficial  use,  and  to  which  he  is 
entitled  as  against  a  subsequent  appropriator,  the 
system  of  irrigation  in  common  use  in  the  locality, 
if  reasonable  and  proper  under  existing  conditions, 
is  to  be  taken  as  the  standard,  although  a  more 
economical  method  might  be  adopted." 

Nephi  Irr.  Co,  v.  Vickers  (1905),  29  Utah,  315,  81 
Pac.  144,  was  an  action  in  which  plaintiffs'  right  to 
quiet  title  to  all  the  waters  of  Salt  Creek  and  certain 
of  its  tributaries,  and  to  enjoin  defendant  from  inter- 
fering with  any  of  the  waters  of  those  streams.  The 
question  was  involved  as  to  the  quantity  of  water  rea- 
sonably required  to  properly  irrigate  appellant's  lands; 
also  whether  a  subsequent  appropriator  could  compel 
him  to  furrow  his  land  before  irrigation.  The  court, 
having  decided  that  the  findings  and  judgment  are 
erroneous  and  contravene  the  rights  of  the  appellant, 

says: 

"As  appears  from  the  proof,  the  appellant  ap- 
plied the  water  in  an  ordinary  and  usual  way,  anri 
he  was  not  bound  to  furrow  his  land  before  irriga- 
tion. So  long  as  he  used  the  water  without  waste, 
and  in  accordance  with  his  approi)riation,  no  one 
has  a  right  to  complain,  and  under  such  circum- 
stances  the   court   cannot  change   his   manner   of 


use." 


The  rule  of  conformity  to  "common  use  in  llic  local- 
ity," or  "to  the  custom  of  the  locality,"  in   regard  to 


—24— 

water  rights  by  appropriation,  is  supported  by  Barrows 

V.  Fox,  98  Cal.  63,  in  which  it  is  held: 

"Ditches  and  flumes  are  the  usual  and  ordinary 
means  of  diverting  water  in  this  state,  and  parties 
who  have  made  their  appropriations  by  such  means 
cannot  be  compelled  to  substitute  iron  pipes,  though 
they  may  be  compelled  to  keep  their  flumes  and 
ditches  in  good  repair  so  as  to  prevent  any  unnec- 
essary waste." 

We  take  it  that  the  foregoing  authorities  clearly 
show  that  each  of  the  defendants,  as 'a  prior  appropri- 
ator,  "is  entitled  to  make  a  reasonable  use  of  the  waters 
of  Bishop  Creek,  according  to  the  custom  of  the  locality, 
and,  as  long  as  he  does  so,  other  persons  cannot  com- 
plain of  his  acts." 

Counsel  for  plaintift's,  at  page  23  of  their  brief, 
speaking  of  the  rights  of  appropriation  of  the  defend- 
ants, declare  that  they  are  "not  rights  at  all,  but  out  of 
date  habits  w^hich  must  yield  to  the  greater  needs  of  the 
present."    And  then  counsel  go  on  to  say, 

"Nor  is  this  principle  confined  to  water  rights.  Re- 
specting every  kind  of  property  we  find  ourselves  con- 
stantly and  increasingly  limited  in  our  use  of  it  by  the 
rights  of  others  and  of  society  in  general.  It  would 
hardly  be  contended  by  counsel  that  the  owner  of  a  lot 
in  the  city  of  Los  Angeles  could  maintain  the  same  in 
a  filthy,  unsanitary  condition  by  using  thereon  the 
method  of  sew^age  disposal  which  had  been  employed 
ever  since  the  days  of  the  pueblo.  Could  a  property 
owner  suggest  with  any  hope  of  success  that  the  city 
in  compelling  him  to  install  modern  sanitary  devices 
was  invading  his  'rights'?  Doubtless  it  would  be  easier 
and  cheaper  for  him  to  use  the  antiquated  methods,  just 
as  it  is  easier  and  cheaper  to  use  antiquated  methods  of 


—25— 

irrigation.  Could  a  manufacturing  company  claim  that 
its^  'rights'  were  being  unduly  constricted'  by  the  re- 
quirement that  modern  methods  of  smoke  disposal  be 
adopted?  Doubtless  the  old  method  would  be  easier 
and  cheaper  and  in  that  sense  a  valuable  'right'.  Can- 
not a  fruit  grower  be  required  to  spray  his  trees  to 
prevent  the  spread  of  enemy  parasites  or  a  sheep 
herder  to  dip  his  sheep?  Are  not  their  lights'  aflfected 
by  these  'modern,'  'scientific'  and  'expert'  ideas.  Is 
society  to  be  relegated  to  the  dark  ages  simplv  because 
everything  scientific,  efficient  or  modern  is  anathema 
in  the  nostrils  of  those  who  prefer  their  'ancient  soli- 
tary reign'?" 


It  will  be  observed  that  counsel,  in  urging  their  views 
of  the  rules  of  law  governing  the  respective  rights  of 
defendants  and  plaintififs  as  prior  and  subsequent  ap- 
propriators  on  Bishop  Creek,  have  wandered,  inadvert- 
ently, as  we  believe,  into  the  field  of  police  powers  by 
which  the  state  is  enabled  to  impose  restrictions  upon 
private  property  in  the  interest  of  the  general  welfare. 
There  is,  however,  nothing  in  the  police  powers  of  the 
state  which  may  be  invoked  bv  plaintififs  to  effect  a 
reduction  or  curtailment  of  the  property  rights  of  the 
defendants  or  a  transfer  of  any  such  rights  to  the  ])lain- 
tiffs.  We  recognize  the  fact  that  all  property  is  hekl 
subject  to  that  inherent  and  plenary  power  in  the  state 
which  enables  it  to  prohibit  all  things  hurl  ful  to  the 
comfort,  safety  and  welfare  of  society,  but  this  ix)\ver 
cannot  be  employed  to  deprive  one  person  of  his  prop- 
erty in  order  to  give  it  to  another.  As  stated  in  Snn'ley 
V.  MacDonald,  27  L.  R.  A.  (Neb.)  .=;40: 

"It  may,  however,  with  safety  l)e  asserted  that 
the   legislature  cannot  under  the  guise  of  police 


—26— 

regulations  arbitrarily  invade  personal  rights  and 
private  property.  (Dn  the  other  hand  it  should 
appear  to  the  court,  when  such  regulations  are 
called  in  question,  that  they  have  in  fact  some 
relation  to  the  public  health  or  public  welfare  and 
that  such  is  the  end  sought  to  be  attained  thereby." 

Suffice  it  to  say  that  the  legislature  of  California  has 
not  attempted,  "under  the  guise  of  police  regulations," 
to  prescribe  conditions  of  use  of  water  under  approi)ri- 
ations  from  streams  which  give  ground  for  any  claim 
by  plaintiffs  that  the  Bishop  Creek  system  is  an  outlaw 
and  must  be  discarded  for  more  modern  methods. 

Granting  that  it  mav  be  said  of  the  Bishop  system 

what  Judge  Hawley,  in  Rodgers  v.  Pitt,  89  Fed.  420, 

said  of  the  Lovelock  Valley  system,  namely : 

"This  system  is,  perhaps,  an  easy  and  inexpen- 
sive one,  but  must  necessarily  result  in  a  waste  of 
the  water  which  might,  by  the  adoption  of  other 
systems — more  expensive  at  the  start  but  cheaper 
in  the  end — be  avoided,  and  enable  the  farmers  to 
irrigate  a  much  greater  quantity  of  land  with  a 
less  amount  of  water.'' 

Still,  it  may  also  be  said  of  the  Bishop  system  what 

Judge    Hawley    said   of   the   Lovelock   Valley    svstem, 

namely : 

"But  the  system  referred  to  is  in  universal  use 
by  the  farmers  in  that  district  of  country,  and  it 
is  the  duty  of  the  court,  in  the  absence  of  any  law 
on  the  subject,  to  determine  the  amount  of  water 
by  a  reference  to  the  system  used." 

In  the  Rodgers  v.  Pitt  case,  the  court  found  no  law 
requiring  the  irrigators  to  adopt  an  improved  system. 


—27— 

Neither  is  there  any  law  in  this  state  requiring  the  irri- 
gators on  Bishop  Creek  to  adopt  a  more  modern  and 
efficient  system  than  that  under  which  their  lands  have 
been  served  for  well  on  to  half  a  century, 

11. 

The  Appropriations  of  Defendants  Are  Prior  in 
Time  and  Right,  and  Are  Unimpaired  by  the 
Alleged  Adverse   Use   of   Plaintiffs. 

As  correctly  stated  by  counsel  for  plaintiffs,  at  page 
45  of  their  brief,  eferring  to  the  water  rights  of  the 
defendants  in  Bishop  Creek,  "most  of  the  rights  ante- 
date 1877." 

The  evidence  shows  that  the  entire  normal  flow  of 
Bishop  Creek  had  been  appropriated  by  defendants,  or 
their  predecessors  in  interest,  long  prior  to  the  earliest 
claim  of  any  of  the  plaintiffs,  which  was  the  ai)i)ropri- 
ation  of  S.  P.  MacKnight  on  November  19,  1887,  for 
8,000  miner's  inches  of  water,  and  which  was  subse- 
quently assigned  to  the  Hillside  Water  Company.  This 
appropriation  was  made  at  the  site  of  the  original 
Hillside  Reservoir,  on  the  south  fork  of  the  creek. 

The  lands  embraced  in  the  cross-fill  amount  to  11,027 
acres.  This  includes  lands  entirely  irrigated  from 
Bishop  Creek,  lands  irrigated  ]\irtly  from  that  creek 
and  partly  from  other  sources,  and  lands  irrigated 
from  other  sources  or  not  irrigated  at  all. 

The  lands  irrigated  from  Bishop  Creek  aggregate 
the  equivalent  of  8,570.3  acres.     Mr.  Clausen,  as  a  wit- 


—28— 

ness,  used  as  the  basis  of  his  determination  of  the 
proper  duty  of  water  the  figure  of  8,796  acres,  owned 
by  defendants  and  irrigated  entirely  from  Bishop  Creek. 
The  figure  8,570.3  acres  was  arrived  at  by  making  cer- 
tain corrections  which  the  evidence  indicated  vv^ere 
proper  and  necessary. 

We  have  prepared  and  appended  to  this  brief,  as 
Appendix  "A,"  a  tabulation  of  the  various  acreages  of 
the  defendants  embraced  in  such  corrected  total,  to- 
gether with  an  analysis  and  study  showing  the  basis, 
according  to  the  evidence,  of  the  figure  expressing  the 
net  irrigated  acreage,  to-wit,  8.570.3  acres. 

By  way  of  explanation,  we  wish  to  state,  that  in  our 
study  of  area  irrigated  and  water  duty  on  Bishop 
Creek,  we  have  included  the  216  acres  of  defendants 
Powers  and  Watterson  Brothers,  although  the  appro- 
priation for  their  lands,  while  prior  to  the  rights  of 
plaintiffs,  only  dates  back  to  1886.  The  inclusion  of 
these  lands  is  offset  by  acreage  in  the  town  of  Bishop 
having  rights  in  the  creek  initiated  long  prior  to  1886 
but  not  represented  by  any  defendants  in  this  case. 
This  arrangement,  as  we  feel,  does  not  detract  at  all 
from  the  accuracy  of  the  results  of  our  study. 

Reference  to  such  appendix  will  show  that  it  contains 
various  columns  of  data,  as  follows:  Column  1,  giving 
the  names  of  defendants;  column  2,  giving  the  pages  of 
the  transcript  where  testimony  may  be  found;  column 
3,  giving  total  acreage  included  in  cross-bill;  column  4, 
giving  the  lands  either  not  irrigated  from  Bishop  Creek 
or  irrigated  from  that  creek  and  not  owned  by  defend- 


—29— 

ants,  or  owned  by  defendants  and  irrigated  from  that 
creek  under  right  derived  from  Hillside  Water  Com- 
pany; cokimn  5,  giving  the  lands  of  defendants  which 
have  never  been  irrigated;  column  6,  giving  the  acreage 
of  defendants  owning  Bishop  Creek  Canal  stock  and 
excluded  on  basis  of  one  acre  per  share ;  column  7, 
giving  the  net  acreage  entitled  to  irrigation  from 
Bishop  Creek;  and  column  8,  giving  the  acreage  of 
stipulated  priorities. 

The  matters  embraced  in  columns  1,  2,  3,  5  and  7  are 
self  explanatory  and  require  no  discussion. 

Column  4  includes  203  acres  in  the  town  of  Bish(.>p, 
owned  by  parties  not  joined  in  this  suit,  and  composed 
of  a  number  of  independent  holdings  which  are  irri- 
gated by  surface  ditches  from  Bishop  Creek;  also  40 
acres  of  M.  A.  Yandell,  which  is  irrigated  under  a  right 
acquired  from  the  Hillside  Water  Company.  This 
column  also  includes  10  acres  of  defendant  C.  M.  Dixon, 
24  acres  of  defendant  W.  E.  Goodwin,  25  acres  of  de- 
fendant Louis  Pauly,  6  acres  of  defendant  R.  J. 
Schober,  and  15  acres  of  defendant  J.  M.  Thomas, 
which  are  and  have  been  irrigated  from  the  Owens 
River  Canal.  The  remainder  of  their  respective  hold- 
ings have  always  been  irrigated  from  Bishop  Creek, 
excepting  that  defendant  j.  iM.  Thomas,  in  addition  to 
the  15  acres  mentioned,  has,  during  the  past  two  years, 
on  account   of   shortage,   irrigated   25   acres    from  the 

canal. 

Column  4  also  includes  60  acres  of  defendant   R    I). 
Brierly,  25  acres  of  defendant  J.  A.  Cashbaugh  (parcel 


—30— 

2),  82  acres  of  defendant  George  W.  Garner,  14  acres 
of  defendant  J.  M.  Garner,  80  acres  of  defendant  Mary 
E.  B.  Leidy  and  160  acres  of  defendant  R.  W.  Scott, 
which  are  and  have  been  irrigated  from  the  Bishop 
Creek  Canal;  also  40  acres  of  defendant  Katherine 
Dehy,  which  is  and  has  been  irrigated  from  the 
Farmers'  Ditch.  The  remainder  of  the  holdings  of 
these  defendants  have  always  been  irrigated  from 
Bishop  Creek,  excepting  that  80  acres  of  parcel  3  of 
defendant  J.  A.  Cashbaugh  has  been  irrigated  partly 
from  Bishop  Creek  and  partly  from.  Bishop  Creek 
Canal. 

Counsel  for  plaintiffs  take  the  position  that  the  de- 
fendants who  have  canal  stock  are,  to  the  extent  of 
their  holdings  on  the  basis  of  one  share  per  acre,  pre- 
cluded from  asserting  rights  by  appropriation  in  the 
creek,  and  this  regardless  of  the  extent  to  which  the 
stock  has  been  used  for  irrigating  their  lands.  For 
example,  they  say,  "It  is  now  impossible  for  any  de- 
fendant to  claim  water  in  Bishop  Creek  for  land  for 
which  he  holds  stock  in  the  canal."  (Plffs.'  Op.  Brief, 
pp.  84-7.) 

The  position  of  counsel  is,  that,  if  a  defendant,  for 
instance,  has  100  acres  of  land  and  acquires  100  shares 
of  canal  stock,  he  may  assert  no  rights  in  the  creek, 
even  though  his  land  has  always  been  irrigated  exclu- 
sively from  the  creek.  Counsel  cite  no  law  to  sustain 
this  contention,  and  of  course  there  is  no  such  law. 
Manifestly,  if  a  water  right  by  appropriation,  appur- 
tenant to  a  parcel  of  land,  has  been  established  in  the 


—31— 

manner  provided  by  law,  and  the  owner  continues  to 
apply  the  water  to  beneficial  use  thereon,  that  right 
does  not  cease  to  exist  merely  because  such  owner  pur- 
chases, inherits  or  otherwise  acquires  stock  which  en- 
titles him  to  a  supply  of  water  from  a  canal  for  his 
land  if  he  chooses  to  demand  such  water. 

Stock  in  a  canal  is  not  attached  nor  made  appurtenant 
to  particular  land,  but  passes  from  hand  to  hand.  This 
is  certainly  true  as  to  land  upon  which  the  stock  has 
not  been  used.  The  form  of  certificates  of  stock  in  Hie 
Owens  River  Canal  and  Bishop  Creek  Canal  was  put 
in  evidence  [Tr.  p.  2113  and  p.  2424]  and  they  do  not 
provide  for  any  designation  of  lands  to  be  irrigated 
from  the  canal.  Counsel  for  plaintiffs  at  the  hearing, 
in  connection  with  the  testimony  of  William  A.  Cash- 
baugh,  gave  the  correct  legal  situation  regarding  such 
stock.  We  quote  from  a  statement  of  Mr.  Swallow 
as  follows  [Tr.  p.  1838]  : 

"In  fact,  the  way  we  do  business  down  in  this  coun- 
try is  this,  that  none  of  this  stock  is  appurtenant  to 
anything.  The  stock  is  not  appurtenant  to  any  particu- 
lar land? 

The  witness:    No." 

We  will  now  give  consideration  to  column  6  of  Ap- 
pendix "A." 

(a)  Additional  lands  bdoiv  BisJwf^  Creek  Canal 
brought  under  creek  supply  in  1H87.  Colunm  7  shows 
a  total  of  8,570  acres  plus,  now  owned  by  defendants, 
which  have  been  irrigated  from  Bishoj)  Creek  under 
appropriations  initiated  in  1887  and  prior  thereto      A 


—32— 

considerable  portion  of  this  acreage  is  situated  below 
Bishop  Creek  Canal.  The  construction  of  the  Kinsley 
Ditch  in  the  late  80's  resulted,  as  shown  by  Appendix 
"A,"  in  bringing  under  the  creek  supply  an  additional 
783  acres  below  the  canal,  including  Bodle,  100  acres; 
Cashbaugh,  206  acres;  Compton  (Meade),  138  acres; 
Marquam,  G7  acres;  Mayhew,  49  acres;  Sullivan.  50 
acres;  and  Summers,  173  acres. 

The  efTect  of  this  increase  was  to  bring  about,  from 
time  to  time,  a  shortage  of  supply,  particularly  in  ^he 
early  spring  and  fall,  affecting  2,020  acres  lying;  below 
the  canal,  including  1,237  acres  of  the  aforesaid  8,570 
acres  and  the  additional  783  acres  mentioned.  The 
1,237  acres  includes  J.  A.  and  W.  A.  Cashbaugh  and 
Cashbaugh  Estate,  70  acres;  Carrie  Currie,  79  acres; 
John  Dehy,  315  acres;  Davis,  39  acres;  B.  I.  Garner, 
125  acres;  Hartwig,  80  acres;  Mayhew,  50  acres;  New- 
Ian,  50  acres;  Sullivan,  50  acres;  Summers,  80  acres; 
Teare,  138.5  acres;  and  Tw^eedy,  160  acres. 

To  relieve  the  condition  of  shortage  affecting  such 
acrea  of  2,020  acres,  the  farmers,  beginning  in  1888, 
resorted  to  the  canal  for  a  supplementary  supply. 

However,  according  to  the  evidence,  rights  by  actual 
appropriation  in  Bishop  Creek  for  9,353  acres  now 
owned  by  defendants  and  included  in  the  cross-bill, 
were  initiated  prior  to  any  appropriations  of  the  plain- 
tiffs, or  their  predecessors  in  interest,  and  the  entire 
9,353  acres  has,  in  whole  or  in  part,  been  irrigated  frr^m 
Bishop  Creek  ever  since. 


—33— 

(b)  Proportion  of  supply  from  creek  and  canal 
respectively.  The  evidence  plainly  shows  that  less  than 
forty  per  cent  of  the  supply  to  meet  the  shortage  af- 
fecting the  2,020  acres  below  the  canal,  came  from  the 
canal,  the  rest,  of  course,  coming  from  the  creek.  This 
conclusion  results  from  a  consideration  of  facts  estab- 
lished by  the  evidence. 

As  we  have  pointed  out,  the  area  supplied  from  the 
creek  in  1887  or  earlier,  was  8,570  acres.  This  acreage 
represented  the  amount  of  land  which  long  experience 
had  determined  that  the  average  flow  of  the  creek, 
year  after  year,  would  take  care  of.  The  controlling 
and  limiting  condition  of  the  supi)ly  was  the  discharge 
during  the  first  and  last  months  of  the  irrigating  sea- 
son. To  add  a  substantial  acreage  to  this  area  meant 
that,  while,  perhaps,  the  high  flow  of  the  creek  would 
ordinarily  be  sufficient  for  the  enlarged  area,  yet,  sooner 
or  later,  the  spring  supply,  anyhow,  would  fall  short  of 
the  requirements  of  the  land  in  the  section  where  the 
additional  acreage  had  been  brought  under  the  creek 
supply.  We  have  designated  above  the  lands  which, 
according  to  the  evidence,  were  affected  by  the  inev- 
itable shortage,  and  constituting  1,237  acres  of  the  old 
area  and  the  additional  783  acres  mentioned.  Since 
then,  but  for  the  added  area,  the  regular  creek  sui)ply 
would  have  sufficed  for  this  8,570  acres,  it  follows  that 
the  shortage  affecting  the  2,020  acres,  and  resuhing 
from  the  addition  of  the  783  acres,  was  measured  antl 
determined  bv  the  water  re(|uirements  of  tlie  added 
lands.     Therefore,  the  cjuantity  of  water  obtainecl  fron"" 


—34— 

the  canal  to  meet  the  deficiency  on  the  2,020  acres  was 
in  the  ratio  of  783  to  2,020,  and,  necessarily,  the  quan- 
tity of  water  obtained  from  the  creek  to  meet  the  de- 
ficiency on  such  area  was  in  the  ratio  of  1,237  to  2,020. 
In  other  words,  the  canal  supply  in  such  area,  at  its 
maximum,  has  not  exceeded  forty  per  cent  of  the  to^.al 
supply  for  such  area. 

The  ratio  of  783  to  1237,  as  representing  the  per- 
centage of  canal  and  creek  water  respectively  supplied 
on  the  area  of  2,020  acres  affected  by  such  shortage, 
is  supported  by  a  study  of  the  holdings  and  use  of 
Bishop  Creek  Canal  stock  as  shown  by  the  evidence. 
In  making  such  study  we  have  proceeded  on  the  as- 
sumption, which  seems  to  us  fair  and  reasonable,  that 
the  stock,  when  used,  was  applied  on  the  basis  of  one 
share  to  the  acre,  and  that  where  the  holder  of  stock 
had  more  shares  than  acres,  he  obtained  one-half  his 
supply  from  the  canal  and  one-half  from  the  creek, 
and  where  the  holder  had  less  shares  than  half  his  acre- 
age, the  deficiency  of  supply,  after  applying  the  stock, 
was  all  obtained  from  the  creek.  The  detail  of  such 
study  is  contained  in  Appendix  "B,"  attached  to  this 
brief  and  the  results  thereof  are  also  reflected  in 
columns  6  and  7  of  Appendix  "A." 

Column  8  of  Appendix  "A"  includes  5,575.9  acres  of 
the  total  11,027  acres  embraced  in  the  cross-bill,  for 
which  priority  of  rights  in  Bishop  Creek  by  anpropri- 
ation  was  conceded  by  counsel  for  plainti^^s,  at  the 
hearing.     Near  the  close  of  the  hearing  a  list  of  such 


—35— 

conceded  priorities  was  prepared  bv  counsel  for  de- 
fendants and  furnished  counsel  for  plaintiffs. 

A  list  of  the  lands  owned  by  defendants,  included 
in  the  cross-bill,  for  which  priority  of  water  rights  is 
not  stipulated,  but  is  proven,  showing  the  nam^s  of 
the  defendant  owners,  acreages,  and  references  to  pages 
of  the  transcript,  is  contained  in  Appendix  "C"  of  this 
brief. 

Taking  up  now  the  claim  of  plaintiffs  to  title  by  pro- 
scription or  adverse  use,  we  submit: 

(a)  The  burden  of  proof  is  on  the  claimant  of  the 
adverse  title.  The  requisites  of  adverse  use  to  give 
title  to  a  water  right  are,  as  usually  stated,  it  must 
have  been  open,  notorious,  continuous  for  the  statutory 
period,  uninterrupted  and  under  a  claim  of  right,  or 
color  of  title.  Wiel  on  Water  Rights,  etc.,  Vol.  1,  3rd 
ed..  Sec.  582,  et  seq. 

Alta  Land  etc.  Co.  v.  Hancock,  85  Cal.  219,  de- 
fines the  adverse  enjoyment  necessary  to  a  prescriptive 
right  to  the  diversion  and  use  of  water  as  follows: 

"This  right  becomes  fixed  only  after  five  years' 
adverse  enjoyment.  (Crandall  v.  Woods,  8  Cal. 
136;  Union  Water  Co.  v.  Crarv,  25  Cal.  504;  85 
Am.  Dec.  145.)" 

"And  to  have  been  adverse,  it  must  have  been 
asserted  under  claim  of  title,  with  the  knowledge 
and  acquiescence  of  the  person  haxing  the  prior 
right,  and  must  have  been  uninterrui)ted.  (Amer- 
ican Co.  V.  Bradford,  27  Cal.  360.)" 

"In  order  to  constitute  a  right,  by  prescription, 
there    must    have   been    such    an    invasion    of    (he 


—36— 

rights  of  the  party  against  whom  it  is  claimed 
that  he  would  have  had  ground  of  action  against 
the  intruder.  (Anaheim  Water  Co.  v,  Semi- 
Tropic  Water  Co.,  64  Cal.   185.)" 

"To  be  adverse,  it  must  be  accompanied  by  all 
the  elements  required  to  make  out  an  adverse  pos- 
session; the  possession  must  be  by  actual  occupa- 
tion, open,  notorious,  and  not  clandestine;  it  must 
be  hostile  to  the  other's  title;  it  must  be  held  under 
claim  of  title,  exclusive  of  any  other  right,  as  one's 
own;  it  must  be  continuous  and  uninterrupted  for 
the  period  of  five  vears.  (Thomas  v.  England,  71 
Cal.  458.)" 

Among  the  many  authorities  that  might  be  cited  on 

the  question  of  the  burden  of  proof,  we  will  only  quote 

from  a  few,  as  follows: 

"The  burden  of  proof  is  upon  the  adverse  claim- 
ant." 

Wiel  on  Water  Rights,  etc..  Vol.  1,  3rd  ed,  Sec. 

579. 

In  Smith  v.  Duff,  102  Pac.  (Mont.)  981,  the  court, 

speaking  of  a  plea  of  adverse  title  to  the  use  of  water, 

says: 

"The  appellants  having  alleged  themselves  to 
be  the  owners  of  the  right  to  use  the  waters 
claimed  by  them,  the  burden  is  on  them  to  prove 
it." 

Also, 

"Because  of  the  nature  of  the  right,  the  ele- 
ments constituting  it  must  be  proven  satisfactorily 
and  unequivocally;  and  no  doubtful  inferences  will 
suffice." 

Smith  v.  Duff,  supra. 


—37— 

Also, 

"It  is  essential  that  the  use  be  shown  to  have 
been  adverse.  Proof  of  the  mere  use  of  the  water 
during  the  statutory  period  is  not  sufficient.  It  is 
necessary  that  during  the  entire  period  an  action 
could  have  been  maintained  against  the  party 
claiming  the  water  by  adverse  user  by  the  party 
against  whom  the  claim  is  made." 

Smith  V.  Duff,  supra. 

"The  right  which  the  defendants  claim  under 
the  grant,  which  they  assumed  to  exist,  as  evi- 
denced by  their  adverse  use  and  enjoyment  of  the 
water  for  five  years,  they  denominate  an  easement. 
*  ♦  >:=  xhe  burden  of  proving  this  is  on  the 
party  claiming  the  easement.  If  he  leaves  it 
doubtful  whether  the  enjoyment  was  adverse, 
known  to  the  owner  and  uninterrupted,  it  is  not 
conclusive  in  his  favor." 

American  Co.  v.  Bradford,  27  Cal.  360. 

The    burden    of    proving    uninterrupted    user,    with 
knowledge  of  the  owner,  is  on  the  party  claiming  by 
prescription.     (American  Co.  v.  Bradford,  27  Cal.  360.) 
Ball  V.  Kehl,  95  Cal.  606. 

"*  *  *  the  burden  of  proof  is  upon  the  per- 
son in  possession  and  claiming  against  the  holder 
of  the  legal  title  to  show  that  his  occupancy  is  hos- 
tile and  not  subordinate  to  the  legal  title.  He 
must  prove  all  the  essential  elements  of  adverse 
possession.  (Sharp  v.  Daughney,  ii  Cal.  .^05;  De 
Frieze  v.  Quint,  94  Cal.  6.=^3;  (28  Am.  St.  He]). 
151,  30  Pac'T  1) ;  Ball  v.  Kehl,  95  Cal.  606,  (30  Pac. 
780);  Baldwin  v.  Temple,  101  (\al.  396,  (35  Pac. 
1008);  2  Am.  &  Eng.  Encv.  of  Law  and  Prac. 
363.) 

Janke  v.  McMahon,  21  Cal.  App.  781,  7^S. 


—38— 

(b)  Plaintiffs  failed  to  establish  adverse  title. 
Plaintiffs'  claims  of  right  and  title,  by  adverse  use,  in 
and  to  the  waters  of  Bishop  Creek,  referred  to  and  de- 
scribed in  the  earlier  part  of  this  brief,  were  set  up  at 
pages  70  to  93,  inclusive,  of  their  "further  and  sep- 
arate answer  and  defense  to  the  cross-bills.''  Such 
adverse  use  is  alleged  to  have  been  exercised  by  the 
Hillside  Water  Company  and  Nevada-California  Power 
Company  as  follows : 

"For  more  than  ten  years  last  past  openly,  notori- 
ously, continuously,  uninterruptedly  and  peaceably  (ex- 
cept as  above  stated),  and  exclusively,  and  under  claim 
of  right,  and  in  good  faith  and  with  the  full  knowledge 
of  the  said  cross-complainants  and  their  predecessors 
in  interest,  and  each  and  all  of  them,  and  adversely  to 
the  said  cross-complainants  and  their  predecessors  in 
interest,  and  each  and  all  of  them  and  the  whole 
world." 

As  to  the  Southern  Sierras  Power  Company,  the 
alleged  period  of  adverse  use  is  "more  than  five  years 
prior  to  the  commencement  of  this  action." 

The  exception  contained  in  such  statement  of  adverse 
use  evidentlv  refers  to  the  excursion  of  Bishop  Creek 
farmers  to  the  Hillside  reservoir  in  June,    1919,  and 
their  alleged  forcible  release  of  water  from  that  reser-. 
voir  for  use  on  their  lands  below. 

Such  defense  of  adverse  title  as  against  the  defend- 
ants, must,  of  course,  be  taken  as  based  upon  the  impli- 
cation that  the  property  thus  claimed  to  have  been  ac- 
quired was  formerly  vested  in  the  defendants.  In  Little 
Walla  Irr.  Union  v.  Finis  Irr.  Co.,  124  Pac.  (Or.~)  666, 


—39— 

several  of  the  defendants,  by  their  answers,  asserted 

title  by  adverse  use  to  water  which  was  the  subject  of 

the  action.    The  court  says,  regarding  this  situation : 

"To  constitute  such  title  to  running  water 
against  a  prior  appropriation,  it  is  necessary  to 
show  a  continuous  use  for  a  period  of  ten  years 
under  a  claim  of  title,  and  to  establishh  that  such 
use  deprived  the  person  from  whom  the  adverse 
title  is  claimed  to  have  been  acquired  of  water  to 
which  he  was  entitled,  and  for  which  diversion  he 
would  have  a  cause  of  action." 

Plaintiffs  having,  bv  their  plea  of  title  by  adverse 
use,  conceded,  for  the  purposes  of  such  defense  at  least, 
that  title  to  the  water  was  formerly  vested  in  the  de- 
fendants but  through  adverse  use  has  passed  to  the 
plaintiff's,  has,  as  we  have  seen,  the  burden  of  showing 
that  for  at  least  five  years  they  have  openly,  notoriously, 
continuously,  and  adversely  to  the  defendants,  and 
under  claim  of  right,  exercised  the  rights  in  and  to  the 
waters  of  the  creek  to  which  they  assert  title.  Starting 
then  with  the  situation  established  by  the  evidence,  and 
conceded  by  the  plea  of  title  by  adverse  use.  that  j)ri()r 
rights  thereto  were  formerlv  vested  in  the  defendants, 
we  have  now  to  consider  the  question  whether  the 
plaintiffs  have  sustained  their  s])ecial  defense  and 
shown  that  they  have  gained  title  by  adverse  use,  as 
alleged  by  them.  W^e  assert  that  ])laintiffs  have  com- 
pletelv  failed  to  make  good  their  j)lea  of  adx'erse  title. 

The  evidence  regarding  plaintiffs'  appr()])riati()n  and 
use  of  the  waters  of  the  creek  in  relation  to  their 
claim  of  adverse  title,  mav  be  considered  under    four 


—40— 

heads,  first,  original  Hillside  reservoir  and  irrigation 
of  Hillside  lands;  second,  construction  and  operation 
of  enlarged  Hillside  and  Sabrina  reservoirs;  third, 
fluctuations;  and  fourth,  interruptions  of  alleged  ad- 
verse use. 

1.  Original  Hillside  reservoir  and  irrigation  of 
Hillside  lands.  The  following  facts  contained  in  the 
evidence  should  be  noted. 

First  appropriation  made  by  MacKnight  on  No- 
vember 19,  1887.     [Tr.  p.  44.] 

Construction  of  original  Hillside  reservoir  begun  in 

1888.  [Tr.  p.  45.] 

Reservoir  completed  in  1892.     [Tr.  p.  50.] 
Notice  of  appropriation  of  old  North  Hillside  ditch 
posted  on  November  19.  1888.     [Tr.  p.  54.] 

Work    of    constructing    ditch    begun    in    December, 

1889.  [Tr.  p.  S7.] 

Took  water  from  creek  to  irrigate  small  vineyard 
in  January,  1890.     [Tr.  pp.  57-8.] 

Diverted  water  for  an  orchard  of  80  acres  in  spring 
of  1890.  Took  up  and  moved  vineyard  same  spring. 
[Tr.  p.  58.] 

Notice  of  appropriation  for  old  South  Hillside  ditch 
posted  December  19,  1888.     [Tr.  p.  54.] 

Construction  of  ditch  commenced  in  fall  of  1890. 

Dam  broke  in  August,  1896.     [Tr.  p.  68.] 

No  real  irrigataion  was  undertaken  through  the  old 
South  Hillside  ditch  prior  to  1896,  when  MacKnight 
left  the  company   [Tr.  p.  72],  and  only   120  acres  of 


—41— 

lands  of  the  company  were  irrigated  up  to  1896.  [Tr. 
p.  76.] 

New  North  Hillside  ditch  constructed  in  1907.  [Tr. 
p.  102.] 

New  South  Hillside  ditch  constructed  in  1913.  [Tr. 
p.  101.] 

In  the  operation  of  the  reservoir  the  gates  were  shut 
in  the  fall  and  remained  closed  until  about  the  latter 
part  of  Julv,  or  the  first  part  of  AugTist,  when  they 
were  opened  and  the  stored  water  let  down.  [Tr.  pp. 
240-1.]  The  reservoir  was  operated  in  pursuance  of 
the  policy  and  intention  to  catch  the  waters  of  the 
stream  only  at  times  when  they  were  not  needed  by 
the  irrigators  below.     [Tr.  p.  242.] 

It  was  the  intention  of  the  Hillside  \\''ater  Com- 
pany, in  posting"  notices  for  its  reservoirs,  and  in  con- 
structing the  same,  to  take  only  unappropriated  water 
sufficient  to  fill  the  reservoirs.     [Tr.  p.  244.] 

Total  acreage  of  Hillside  lands  irrigated  from 
Bishop  Creek,  on  June  12,  1919,  during  the  five  years 
preceding  June  12,  1919,  was  575  acres,  including  only 
lands  owned  by  the  company  on  the  last  mentioned 
date,  and  covering  400  acres  on  the  north  side  and 
175  acres  on  the  south  side  of  Bishop  Creek.  [Tr. 
p.  447.] 

2.  Construction  and  operation  of  enlarged  Hillside 
and  Sabrina  reservoirs.     The  evidence  shows: 

Preliminary  surveys  for  Sabrina  reservoir  begun  in 
1906.     [Tr.  p.  94. 1 


—42— 

Actual  conslrnclion  of  reservoir  bec^-un  in  1^07,  nnd 
finished  in  1909.     [Tr.  p.  94.] 

Construction  of  enlarged  Hillside  reservoir  begun  in 
1908  and  completed  in  1910.     [Tr.  pp.  97-8.] 

On  February  26,  1906,  a  meeting  was  held  at  Bishop, 
California,  between  Charles  F.  Potter,  attorney  repre- 
senting the  Nevada  Power,  Mining  and  Milling  Com- 
pany, parent  company  of  the  Nevada  California  Power 
Company,  and  Southern  Sierras  Power  Company,  and 
a  delegation  appearing  in  behalf  of  the  Bishop  Creek 
Water  Association,  an  unincorporated  organization 
composed  of  owners  of  the  older  water  rights  on 
Bishop  Creek,  in  reference  to  the  proposed  establish- 
ment by  the  company  of  storage  on  that  creek  in  con- 
nection with  power  development.  Such  meeting  re- 
sulted in  an  agreement  being  made,  signed  in  behalf 
of  the  company  by  Mr.  Potter,  and  in  behalf  of  the 
association  by  its  president  and  secretary,  a  copy  of 
which  was  introduced  in  evidence  [Tr.  p.  17]  as 
Plaintiffs'  Exhibit  23.  Such  meeting  and  the  resulting 
agreement  may  be  said  to  have  initiated  the  open,  no- 
torious and  declared  policy  of  the  power  interests  re- 
garding irrigation  on  Bishop  Creek. 

Such  agreement  expressly  recites  that  the  waters 
proposed  to  be  stored  and  impounded  were  the  "waste 
and  surplus  water  of  said  Bishop  Creek.'' 

Also,  that  the  Power  Company  had  applied  to  the 
United  States  Government  for  certain  rights  of  way 
and 


—43— 

"permission  to  so  store  and  impound  the  said  waste  and 
surplus  waters,  and  contemplate  further  applications 
for  that  purpose,  and  upon  favorable  action  of  the 
government  in  that  respect  to  construct  the  necessary 
dam  or  dams  and  create  the  necessary  reservoir  or 
reservoirs  for  said  purpose." 

Also,  that  the  Power  Company  proposes  to  utilize 
the  reservoir  site  theretofore  located  bv  the  Hillside 
Water  Company,  or  a  portion  thereof,  as  well  as  the 
''subsequent  locations"  made  by  the  Power  Company. 

Also,  that  "the  impounding  and  storing  of  said 
waste  and  surplus  waters"  by  the  company  will,  in  the 
use  thereof  after  the  same  has  been  used  by  the  com- 
pany, be  of  great  benefit  to  such  association  and  its 
members. 

The  agreement  then  provides  "that  all  the  said  waste 
and  surplus  w'ater  so  stored  and  impounded"  by  the 
Power  Company,  after  its  use  for  the  purposes  of 
power  development,  shall  be  returned  to  the  creek 
below  the  works  and  plants  of  the  company  and  thence 
be  subject  to  the  control  of  the  association,  and  "to  be 
used  for  irrigation  purposes  by  the  parties  entitled 
thereto,  as  the  users  and  appropriators  of  water,  and 
owners  of  the  land  to  which  said  waters  are  appur- 
tenant, upon  and  adjacent  to  said  l^ishop  Creek.'' 

Also,  that  the  association  shall  assist  the  company 
in  securing  the  proper  and  necessary  rights  of  way, 
and  permission  to  impound  and  store  "ihc  surplus  and 
waste  waters  of  said  Bishop  Creek." 


—44— 

Arthur  A.  Shirley,  who  was  present  as  a  repre- 
sentative of  the  association  at  the  meeting  of  February 
26,  1906,  testified  [Tr-  P-  2454]  : 

"So  Mr.  Potter  stated  that  they  intended  to  store 
nothing  but  waste  and  surplus  waters  from  Bishop 
Creek.  I  remember  Mr.  Schober  getting  up  and  ask- 
ing what  he  meant  by  that,  and  he  said  that  the  waters 
that  they  did  not  need — that  otherwise  woukl  go  to 
the  river." 

Also, 

"*  *  *  he  said  the  policy  of  the  company  was  to 
equate  the  flow  of  Bishop  Creek  to  a  certain  amount, 
and  we  would  all  be  better  ofi^;  that  we  would  have 
more  water  in  the  irrigating  season;  and  our  right  in 
the  flood  season  would  not  be  afl:'ected.'' 

On  July  21,  1908,  a  meeting  was  held  between 
Messrs.  Potter,  Poole,  Chapelle  and  Harvey  Adams, 
officers  or  agents  representing  the  Nevada  California 
Power  Company  and  the  Hillside  Water  Company, 
and  N.  J.  Cooley,  Wm.  Rowan,  W.  P.  Yaney  and 
S.  J.  Newlan,  representing  the  Bishop  Creek  Water 
Association,  to  discuss  operations  of  the  companies  on 
the  creek  interfering  with  the  supply  of  the  irrigators. 
[Tr.  p.  2483.] 

Mr.    Chapelle    stated    the   purpose    of   the    meeting. 

[Tr.  p.  2486.]     He  said: 

"I  want  to  make  it  the  purpose  of  this  meeting  to 
discuss  the  water  question  and  see  what  we  can  do  to 
develop  a  better  water  service  for  irrigation,  and  then 
I  want  to  see  w^hat  the  Power  Company  and  Hillside 
Company,  whom  we  represent  here  at  this  time,  can 
do  to  relieve  the  situation." 


—45— 

He  also  stated  that  he  beHevecl  the  development  of 
the  companies  on  the  creek  would  flow  100  second  feet 
for  365  days  in  the  year.     [Tr.  p.  2486.] 

The  representatives  of  the  company  acknowledi^ed 
that  the  Hillside  Company  was  not  right  in  using 
water  in  a  short  season.      [Tr.  p.  2487.] 

Mr.  Chapelle  also  stated   [Tr.  pp.  2487-8] : 

"Now  what  I  want  to  assure  you  is  this,  without 
any  question  the  Hillside  reservoir  will  give  you  more 
water  than  you've  got,  but  the  Hillside  Ranch  cannot 
have  what  don't  belong  to  it." 

Also, 

"The   Hillside  Ranch   can  go  to  hell.'' 

The  representatives  of  the  companies  asked  that  the 
Hillside  Company  be  put  on  an  equal  footing  with  the 
association,  but  were  told  by  the  directors  of  the  asso- 
ciation that  such  a  thing  was  impossible.  [Tr.  p. 
2488.] 

Mr.  Chapelle,  referring  to  the  diversion  of  water 
from  the  creek  for  the  Hillside  lands,  and  with  a  view 
of  subordinating  the  irrigation  of  those  lands  to  the 
requirements    of    the    farmers    below,    stated     [Tr.    p. 

2489] : 

'T  want  you  gentlemen  to  feel  that  we  are  here  and 
still  with  you  in  anything  you  can  sustain  in  the  build- 
ing up  of  water  for  the  benefit  of  the  association." 

Also  [Tr.  p.  2490] : 

"We  would  like  to  live  harmonious  with  you  by 
being  honest.  Put  a  dependent  man  there  to  take  care 
of  tile  thing  and  put  locks  on  the  gates." 


—46— 

Mr.  Chapelle  closed  the  meeting  with  these  words 

[Tr.  p.  2490] : 

"I  want  you  to  feel  we  are  trying-  to  work  out  a 
proposition.  You  command  our  legal  department  and 
engineering  department  and  can  in  time  command  the 
treasury  of  this  company  to  a  certain  extent,  which 
we  think  is  sufficient  to  secure  your  confidence.  All 
I  ask  is  co-operation,  we  will  place  locks  on  the  gates 
and  then  we  will  not  get  any  more  water  than  you 
want  us  to  have." 

The  evidence  detailed  above,  showing  the  operations 
and  attitude  of  the  companies  on  Bishop  Creek,  as 
affecting  the  rights  and  interests  of  the  irrigators 
below,  gives  no  support  whatever  to  the  claim  of  plain- 
tiffs to  title  by  adverse  use  as  against  the  defendants 
and  their  predecessors.  So  far  as  such  evidence  goes, 
it  clearly  indicates  that  the  companies,  in  initiating  and 
establishing  their  interests  on  Bishop  Creek,  did  not 
intend  to  deprive  the  irrigators  of  any  of  their  rights 
or  to  lay  the  ground  for  adverse  claims  to  the  waters 
of  that  stream. 

The  years  1909  to  1911,  inclusive,  were  wet  years, 
as  shown  by  Plaintiffs'  Exhibit  "1-F",  and  there  was 
no  apparent  invasion  of  the  rights  of  the  prior  ap- 
propriators  during  that  period,  but  a  shortage  occurred 
in  the  season  of  1912  and  extended  into  the  next  vear, 
resulting  in  a  deficiency  seriously  aft'ecting  such  ap- 
propriators. 

Under  date  of  March  7,  1913,  I.  B.  Potter,  attorney 
of  the  companies,  addressed  a  letter  to  W.  P.  Yaney, 
president  of  the  Bishop  Creek  Water  Association,  on 


—47— 

the  subject  of  water  rights  in  Bishop  Creek.  [Tr.  p. 
2644  et  seq.]  This  letter  takes  note  of  the  fact  that 
officers  of  the  association,  ''doubtless  with  the  intent 
of  saving  the  rights  of  its  members,"  have  served 
notices  upon  the  companies. 

The  letter  of  the  attorney  for  the  companies  is  writ- 
ten with  the  view,  as  he  states,  *'of  assuring  you  as 
fully  as  possible  that  no  action  of  the  Power  Company 
has  been  taken  w^ithout  full  regard  to  the  rights  of 
all  users  of  the  water  in  question,  and  that  the  com- 
pany intends,  not  only  to  respect  the  rights  of  these 
water  users,  but  to  assist  and  co-operate  with  them  in 
every  reasonable  way  in  the  enjoyment  of  these  rights 
for  the  benefit  of  all  concerned." 

The  letter  then  refers  to  the  agreement  of  February 
26,  1906,  and  particularly  to  the  provision  thereof  in 
reference  to  the  storing  and  impounding  by  the  Power 
Company  of  "waste  and  surplus  waters,"  and  calls 
attention  to  the  fact  that  "the  water  used  by  the  com- 
pany is  and  will  be  all  returned  to  the  stream  at  the 
point  designated  by  the  terms  of  this  agreement." 

Then  mention  is  made  in  the  letter  of  Indian  ditch, 
and  the  writer  gives  assurance  that  the  company  in- 
tends that  all  water  which  formerly  flowed  into  that 
ditch  "will  still  be  turned  into  that  ditch,  and  that  none 
of  the  water  users  who  obtain  their  water  from  that 
source  would  be  in  any  manner  injured  or  their  supply 
lessened  by  any  of  the  work  which  the  company  is 
now  prosecuting." 


—48- 

This  letter  in  no  way  asserts,  or  lays  the  foundation 
for  asserting,  an  adverse  claim  or  title  against  the 
irrigators.  It  does  not  assert,  or  lay  the  foundation 
for  asserting,  that  the  companies  have  the  purpose,  or 
have  or  intend  to  exercise  the  right  to  store  or  release 
the  waters  of  Bishop  Creek  "at  such  times  and  in  such 
quantities  and  in  such  manner  as  might  be  required 
for  the  proper  operation  of  the  power  plants"  of  the 
companies  on  Bishop  Creek,  or  so  as  to  make  available 
to  the  irrigators  any  specified  or  limited  quantity  of 
water. 

The  letter  is  entirely  deferential  to  the  prior  rights 
and  claims  of  the  irrigators,  and  gives  no  support 
whatever  to  the  companies'  assertion  in  this  case  of 
open,  notorious  and  adverse  use  of  the  waters  of  the 
creek  "under  claim  of  right.'' 

In  the  spring  of  1913  the  attention  of  the  companies 
was  called  to  the  fact  that  they  were  storing  water, 
and  that  the  farmers  were  short  of  water;  that  prac- 
tically all  their  ranches  were  dry,  and  demand  was 
made  upon  the  agent  or  representative  of  the  com- 
panies to  release  water  from  their  reservoirs.  As 
stated  by  witness  Shirley,  who  was  present  on  May  30, 
1913,  when  this  matter  was  being  taken  up  by  the 
board  of  directors  of  the  association  with  Mr.  Criddle, 
an  officer  and  agent,  and  Mr.  Swallow,  attorney  of 
the  companies  [Tr.  p.  2463] : 

"*  *  *  finally  Mr.  Rowan  told  Mr.  Swallow  that 
the  water  had  to  be  here  at  nine  o'clock  next  morning, 
or  we  would  go  after  it.     And  that   night  it  came; 


—49— 

an  abundance  of  water.  The  zanjero  told  me  that  he 
had  to  work  all  night,  pretty  near,  taking  care  of  it. 
From  that  time  on  we  had  plenty  of  water." 

This  event,  also,  is  inconsistent  with  any  claim  of 
right  or  title  by  the  companies  to  withhold  the  waters 
of  the  creek  when  needed  by  the  farmers.  The  asser- 
tion by  the  latter  of  their  rights,  and  the  fact  that  the 
companies  found  it  advisable  and  necessary  to  comply 
with  their  demands  on  this  occasion,  led  to  an  arrange- 
ment, of  which  we  will  speak  presently,  between  the 
companies  and  the  irrigators  in  respect  to  the  diversion 
of  water  from  the  creek  for  the  Hillside  lands  and 
complete  recognition  of  the  prior  rights  of  the  users 
below. 

The  association,  while  composed  of  land  owners 
having  first  rights  in  the  stream — rights  initiated  in 
1877  or  prior,  did  not  confine  its  ordinary  operations 
to  the  lands  of  its  members  only,  but  gave  attention 
to  the  distribution  of  water  from  the  creek  to  other 
users,  not  including  the  Hillside  lands,  having  what 
was  termed  "second  rights."  The  supply  was  handled 
on  the  basis  of  giving  the  members  of  the  association 
what  they  needed,  first,  and  if  there  was  any  surplus, 
turning  it  over  to  the  users  having  these  second  rights. 
[Tr.  pp.  467,  1161,  2195.] 

In  1913  the  operations  of  the  association  were  still 
further  extended  to  meet  a  condition  of  shortage  affect- 
ing the  members  of  the  association  and  the  other  users 
under  its  care.  Along  about  the  middle  oi  that  year, 
N.   J.    Cooley,    secretary    of   the   association,    was,    by 


—50— 

agreement  of  the  association  and  the  companies,  put 
in  charge  of  all  diversions  for  irrigation,  including  the 
Hillside  lands  as  well  as  the  lands  of  the  farmers 
below.     [Tr.  pp.  1136  et  seq.,  2463.] 

Under  this  plan,  whenever,  the  zanjero  of  the  asso- 
ciation, who  handled  the  water  for  all  irrigation  in- 
terests, was  short  of  water  he  would  notify  Cooley 
and  the  latter  would  have  the  quantity  needed  released 
from  the  reservoir.  [Tr.  pp.  1136  ef  seq.,  2463.]  The 
Hillside  lands  were  only  given  water  when  there  was 
plenty  of  water  for  the  other  irrigators.  [Tr.  pp.  1138, 
2465-6.] 

Cooley  remained  in  the  position  of  water  adminis- 
trator until  January,  1914.  He  was  succeeded  by 
others  who  exercised  like  functions,  until  1918.  [Tr. 
pp.  1169-70,  2463-4.] 

C.  N.  Shephard  was  employed  by  the  association  as 
zanjero  in  1918.  His  policy  regarding  those  lands  was, 
as  testified  by  him,  "when  there  was  a  surplus  of 
water  I  notified  them  and  let  them  have  it,  and  when 
there  was  not,  I  shut  them  oft."  [Tr.  p.  2189.]  One 
Hunter  was  superintendent  of  the  Hillside  ranches. 
[Tr.  pp.  2189-90.]  Shephard  further  testified  [Tr.  p. 
2191]: 

''O.  Now,  upon  what  basis,  or  in  what  manner,  did 
you  handle  the  water  as  between  the  Hillside  lands  and 
the  other  users  of  Bishop  Creek  water? 

A.  I  never  gave  the  Hillside  any  water,  except 
over  and  above  what  the  Bishop  Creek  users  used. 
li  I  had  any  surplus  water  over  and  above  what  they 
used,  I  used  to  turn  Mr.  Hunter  some  water." 


—51— 

A\'hen  the  superintendent  of  the  Hillside  land  wanted 
water  he  made  application  to  the  association's  zanjero. 
[Tr.  pp.  2189-90.] 

Afterwards,  in  1918,  upon  demand  of  the  associa- 
tion, the  Hillside  Company  turned  over  the  keys  to  its 
gates  to  the  zanjero,  thus  giving'  him  complete  control 
of  the  supply  for  that  company's  lands.  [Tr.  pp.  1136- 
Z7,  2190-91.] 

The  president  of  the  association,  in  explaining  to 
the  officers  of  the  companies  why  the  keys  were  de- 
manded, stated  that  it  was  to  prevent  a  prescriptive 
right  from  being  gained.  Mr.  Poole,  chief  engineer  of 
the  three  plaintiff  companies,  of  whom  such  demand 
was  made,  stated  that  they  did  not  want  a  prescriptive 
risht.  and,  after  takino-  time  to  consider  the  demand, 
the  keys  were  delivered  up.  [Tr.  p.  1137.]  This  was 
on  May  22,  1918.  [Tr.  p.  1157.]  Duplicate  keys  were 
retained  by  the  company  "for  the  purpose  of  closing 
or  shutting  down  these  gates  when  necessary,  but  not 
for  the  purpose  of  opening  the  same."     [Tr.  p.  1157.] 

The  chief  engineer  of  the  Hillside  Company  at  the 
same  time  advised  the  tenant  on  lands  of  the  company 
of  the  arrangement  with  the  association,  and  notified 
him  that  "under  no  conditions  should  you  open  the 
gates  of  the  ditch  to  obtain  water,  but  always  obtain 
it  through  the  zanjero  of  the  Bishop  Creek  Water 
Association."     [Tr.  p.   1160.] 

On  August  31,  1918,  the  Hillside  C()m])any  gave 
notice  of  the  termination  of  the  arrangement  under 
which  the  association   had  been  given   control   of   tiie 


—52— 

diversion  of  water  for  the  lands  of  that  company,  de- 
manding the  return  of  the  keys.  [Tr.  p.  2806  et  seq.] 
The  water  supply  for  the  farmers  in  the  spring  and 
early  summer  of  1919  was  short  practically  through- 
out the  Bishop  area.  Crops  suffered  and  considerable 
damage  resulted.  President  Young  of  the  association 
gave  a  detailed  description  of  these  conditions  [Tr.  p. 
1133  cf  seq.]  and  other  witnesses,  some  describing  the 
territory  generally,  and  others,  principally  farmers, 
telling  of  their  experience  on  their  own  places,  testi- 
fied to  the  same  effect.  The  needs  of  the  irrigators 
becoming  acute,  the  trip  to  the  Hillside  reservoir  re- 
sulted, and  there  the  present  litigation  had  its  incep- 
tion. 

3.  fluctuations.  The  right  to  vary  the  flow  of  the 
stream  to  meet  the  requirements  of  power  generation 
is  included  in  plaintiffs'  assertion  of  adverse  use.  This 
phase  of  the  case  is  affected  by  the  fact,  strange  as  it 
may  be,  that  at  the  hearing,  plaintiff's,  despite  their 
pleading,  really  took  the  position  that  their  operations 
on  the  creek  produced  no  more  fluctuations  than  would 
occur  under  natural  conditions.  Defendants,  on  the 
other  hand,  showed  by  many  witnesses  that  since  the 
advent  of  the  power  companies  the  operations  of  their 
plants  had  caused  more  numerous,  more  frequent  and 
more  irregular  fluctuations  in  the  flow  of  the  stream 
than  would  have  occurred  naturally.  It  is  obvious  that 
plaintiffs  could  not  hope  to  establish  the  right  of  fluc- 
tuation through  an  alleged  invasion  of  the  rights  of 


—53— 

the  defendants  by  putting  in  evidence  that  really  it 
did  not  occur,  and  thus  virtually  disclaiming"  any  right 
to  fluctuate  the  flow  of  the  stream  adversely  to  de- 
fendants. The  defendants  claim  that  such  invasion 
did  occur,  but  not  so  as  to  give  the  right  by  adverse 
use  to  continue  the  same. 

Mr.  Poole,  chief  engineer  of  the  companies,  stated 
that  variations  in  the  stream  from  power  operations 
were  not  very  much  greater,  if  any,  than  before  the 
power  plants  were  installed.  [Tr.  p.  127.]  Also,  that 
it  is  the  aim  of  the  companies  to  keep  fluctuations  due 
to  power  operations  down  to  what  they  were  substan- 
tially in  the  natural  flow  prior  to  the  installation  of 
the  plants.     [Tr.  p.  127.] 

Engineer  Huber,  testifying  for  the  companies,  stated 
that  he  had  compared  the  variations  of  natural  flow  in 
the  creek  with  variations  resulting  from  power  opera- 
tions and  found  that  such  operations  do  not  make  a 
greater  variation.     [Tr.  p.  330.] 

Mr.  Criddle,  ''Acting  General  Agent,"  in  a  letter  to 
N.  J.  Cooley  dated  September  10,  1913,  on  the  subject 
of  "water  supply  of  Bishop  Creek,"  stated,  "f  hope 
before  next  season  we  may  be  able  to  work  out  .some 
method  by  which  the  daily  fluctuations  can  be  cor- 
rected."    [Tr.  p.  2650.] 

On  the  question  v/hether  ])ovver  fluctuations  have 
been  greater  than  natural  fluctuations,  and  whether  the 
companies  have  been  oi)enly,  notoriously,  continuously, 
uninterruptedly,   adversely   and    under   claim   of   right 


—54— 

fluctuating  the  flow  of  the  stream,  the  above  evidence 
is  both  interesting  and  significant. 

Coming  from  ofiicers  and  agents  of  the  companies, 
as  sworn  witnesses,  it  not  only  disproves  their  asser- 
tion of  adverse  fluctuations  under  claim  of  right,  but 
clearly  shows  that  the  companies,  prior  to  the  suit, 
rather  entertained  the  hope  and  purpose  of  correcting 
and  preventing  any  such  fluctuations  caused  by  them. 

In  this  situation  the  issue  as  to  adverse  use  under 
claim  of  right  as  regards  fluctuations  disappears,  and 
the  only  question  is,  do  the  companies  cause  the  fluc- 
tuations in  the  flow  of  the  stream,  charged  by  defend- 
ants. If  they  did,  they  were  guilty  of  actionable  tres- 
pass on  rights  of  the  defendants,  to  prevent  continua- 
tion of  which  the  latter  are  entitled  to  injunctive  relief. 
The  evidence  adduced  by  defendants  shows: 

Mr.  Young,  president  of  the  association,  who  has 
been  familiar  with  irrigation  on  Bishop  Creek  for 
many  years,  testified  that  fluctuations  in  stream  flow 
had  been  occurring  ever  since  the  advent  of  the  power 
plants;  that  they  were  particularly  marked  and  notice- 
able in  years  of  short  supply;  that  during  the  years 
1914-1917,  which  were  known  as  wet  years,  such  fluc- 
tuations, on  account  of  the  abundance  of  water,  did  not 
materially  affect  irrigation.     [Tr.  pp.  1170-71.] 

We  have  seen  that  in  1913,  a  short-water  year,  fluc- 
tuations due  to  power  operations  became  a  serious 
trouble,  leading  to  the  message  from  Mr.  Criddle  to 
Mr.  Cooley  of  the  association,  stating  [Tr.  p.  2650] : 


—55— 

''I  hope  before  next  season  we  may  be  able  to  work 
out  some  method  by  which  the  daily  fluctuations  can 
be  corrected." 

Mr.  Shephard,  the  zanjero,  described  fluctuations  in 
1917-1920.  According  to  his  testimony  they  were  not 
serious  prior  to  1919,  when  there  was  a  better  water 
supply,  but  in  1919  and  1920,  which  were  short  years, 
thev  were  verv  detrimental  to  irrig^ation.  As  described 
by  him,  they  were  sharp,  sudden  and  uncertain,  causing 
the  water  supply  to  the  farmers  while  in  use  to  be  cut 
oft'  without  notice  or  to  overflcnv  their  ditches  when 
the  water  w^as  not  expected.  The  supply,  when  affected 
by  these  marked  variations,  could  not  be  efficiently 
used.    The  witness  said  [Tr.  p.  2204] : 

"Q.  Was  it  your  experience  that  these  fluctuations 
would  occur  at  any  particular  time? 

A.  No,  they  were  liable  to  come  at  any  time.  You 
might  go  out  in  the  morning  and  have  a  nice  head 
of  water,  and  fix  things,  and  an  hour  afterwards  you 
might  have  almost  no  head  at  all.  Xever  can  tell  what 
they  would  have." 

In  other  words,  as  plainly  shown  by  the  witness, 
power  fluctuations  were  incompatible  with  proper 
distribution  and  use  of  water  on  the  lands  of  the  farm- 
ers.    [Tr.  pp.  2201-2205.] 

Defendants'  Exhibit  "K"  presents  a  study  of  power 
fluctuations  in  Bishop  Creek  based  on  actual  measure- 
ments and  observations  in  the  seasons  of  1919  and 
1920  just  below  plant  6  and  above  all  diversions. 

Defendants'  Exhibit  "M"  shows  the  results  of  ob- 
servations of  diurnal  fluctuations  on  Owens   River  at 


—56— 

different  points  as  compared  with  the  observations  on 
Bishop  Creek  concurrently  made  and  covered  by  De- 
fendants' Exhibit  "K". 

The  difference  manifested  through  this  study  be- 
tween power  and  natural  fluctuations  is  very  marked 
and  substantial.  On  the  river  the  curve  of  fluctuation 
shows  a  uniform  and  gradual  rise  and  fall,  excepting 
slight  variations  caused  by  the  operations  of  the  tur- 
bine of  a  small  power  unit  about  one-half  mile  above 
the  gaging  station  on  the  Owens  River  at  Crooked 
Creek.  On  the  other  hand,  the  curve  for  Bishop  Creek 
shows  numerous,  sharp,  sudden  and  irregular  serra- 
tions, which  could  only  be  ascribed  to  artificial  inter- 
ference with  the  flow  of  the  stream. 

4.  Interruptions  of  alleged  adverse  use.  The  evi- 
dence shows  that  whenever  the  operations  of  the  Hill- 
side and  power  interests  interfered  with  the  supply  of 
the  farmers,  steps  were  taken  to  protect  their  rights. 

In  1892  a  committee,  composed  of  Horton,  Rowan 
and  Bourland,  waited  on  S.  P.  MacKnight  and  shut 
his  ditch  down.     [Tr.  pp.  74,  2407  and  2471.] 

Between  1891  and  1900,  L.  J.  Horton  shut  down  the 
gates  of  the  Hillside  Water  Company  ditches  several 
times  a  year,  excepting  1899.     [Tr.  p.  2477.] 

In  1893  and  1904,  whenever  the  farmers  were  short 
of  water,  they  would  shut  down  the  gates  of  the  South 
Hillside  ditch  and  release  water  from  the  old  Hillside 
reservoir.     [Tr.  pp.  378-80,  2448,  2471.  | 

During  the  period  from  1897  to  1904,  one  Bourland 
was   superintendent   of  the   Hillside   ranches,   and   he 


—57— 

treated  the  rights  of  the  irrigators  below  as  prior  and 
paramount.  When  there  was  a  shortage  of  water  for 
the  use  of  such  irrigators  he  would  have  water  re- 
leased from  the  Hillside  reservoir.     [Tr.  pp.  2451-2.] 

On  April  30,  1908,  Messrs.  Yaney  and  Cooley,  act- 
ing in  behalf  of  the  farmers,  closed  the  Hillside  gates 
and  employed  a  man  to  patrol  the  creek  and  kee])  such 
gates  closed.     [Tr.  p.  2483.] 

On  May  1,  1908,  L.  C.  McLaren,  agent  of  the  direct- 
ors of  the  association,  in  company  with  one  Keating, 
employed  by  the  Hillside  interests,  went  up  to  the  old 
Hillside  dam  and  released  water  for  the  use  of  the 
Hillside  lands  and  the  irrigators  below.     [Tr.  p.  2493.] 

Summary  and  Discussion. 

The  foregoing  survey  of  events  from  the  time  of  the 
MacKnight  appropriation,  in  1887,  up  to  and  including 
the  season  of  1918,  has  shown  certain  main  facts  as 
regards  the  effect  on  the  water  supply  for  irrigation 
of  the  advent  of  the  new  interests  on  Bisho])  Creek, 
of  whom   MacKnight  was  the   forerunner,  to-wit: 

From  1887  to  1906  there  apparently  was  ])ut  little 
interference  with  the  defendants,  or  their  predecessors, 
but  when  there  was  interference,  the  o])erations  of  the 
new  comers  were  interrupted  until  the  requirements 
of  the  farmers  were  met. 

In  1906  an  arrangement  was  made  for  storing  and 
impounding  "waste  and  surplus  waters"  of  Bishop 
Creek  for  power  oi)erations,  pursuant  to  a  ])Ian  and 
policy  under  which,  as  the  irrigators  were  assured  by 


—58— 

power  representatives,  only  water  that  otherwise  would 
go  to  the  river  would  be  stored,  and  the  farmers  would 
have  more  water  in  the  irri^o^ating  season  and  be  better 
off. 

In  1908,  a  short-water  year,  differences  between  the 
new  and  the  old  interests  on  the  creek  came  to  a  head, 
and  Mr,  Chapelle,  representing  the  former,  appeared 
on  the  scene  and,  by  acknowledging  the  prior  rights 
of  the  latter  interests  and  giving  assurance  that  such 
rights  would  be  respected,  composed  and  adjusted  the 
trouble. 

In  1913  the  water  supply  became  very  short,  and 
conflict  again  arose  on  Bishop  Creek,  but  again  a  rep- 
resentative of  the  new  interests  appeared  to  explain 
and  give  assurance  to  the  farmers.  His  letter  of 
March  7,  1913,  to  the  association  referred  to  the  ar- 
rangement of  1906,  under  which  the  power  companies 
should  have  the  privilege  of  storing  and  impounding 
"waste  and  surplus  waters"  of  Bishop  Creek,  and  stating 
"that  the  company  intends,  not  only  to  respect  the  rights 
of  these  water  users,  but  to  assist  and  co-operate  with 
them  in  every  reasonable  way,"  etc.  In  the  same  sea- 
son the  companies,  on  demand  of  the  farmers,  released 
from  storage  water  required  for  irrigation,  and  con- 
trol of  the  Hillside  supply  was  placed  in  charge  of 
agents  of  the  association  to  be  handled  in  subordina- 
tion to  the  requirements  of  the  users  below.  This 
arrangement  made  in  1913  lasted  until  the  latter  part 
of  the  season  1918. 


—59— 

The  companies  did  not  in  1906  or  1908  or  1913,  or 
at  any  time  prior  to  1919,  assert  or  claim  any  rights 
in  the  stream  adverse,  hostile  or  prior  to  the  rights 
of  the  irrigators.  Neither  Mr.  Chapelle,  the  big  man 
of  the  company,  nor  attorney  Potter,  nor  the  officers 
or  agents  of  the  companies,  in  any  of  the  numerous 
conferences  with  the  farmers,  assert  that  the  com- 
panies had  the  right  to  store,  release  or  take  water 
when  needed  by  the  farmers.  The  claim  of  the  com- 
panies to  title  by  adverse  use  was  first  heard  of  in 
1919.  Prior  to  that  time  the  attitude  of  the  companies 
invariably  was  that  of  admitted  subjection  to  the  prior 
risfhts  and  interests  of  the  farmers  in  the  creek. 

As  we  have  seen,  the  farmers,  by  direct  action,  re- 
peatedly, from  time  to  time  during  the  period  from 
1887  down  to  1919,  interrupted  the  use  of  the  com- 
panies, but  in  the  face  of  such  drastic  assertion  of 
rights  the  companies  never,  prior  to  1919,  asserted 
any  claim  or  right  in  the  stream  prior  or  superior  to 
the  rights  of  the  farmers. 

The  proposition  that  the  plaintiff  companies  for  five 
years,  or  ten  years,  or  any  period  of  time  prior  to  the 
commencement  of  this  action,  openly,  notoriously,  con- 
tinuously, uninterruptedly  and  adversely  to  the  irri- 
gators below,  and  under  a  claim  of  right,  stored,  re- 
leased, diverted  and  used  the  waters  of  the  creek  to 
suit  power  operations  or  irrigate  Hillside  lands,  is 
entirely  unfounded. 

We  have  heretofore  called  attention  to  the  rule  laid 
down  in  Ball  v.   Kehl,  95  Cal.  606,  holding  that  "the 


—60— 

burden  of  proof  is  upon  the  person  in  possession  and 
claiming-  against  the  holder  of  the  legal  title  to  show- 
that  his  occupancy  is  hostile  and  not  subordinate  to 
the  legal  title.  He  must  prove  all  the  essential  ele- 
ments of  adverse  possession." 

We  have  also  quoted  from  American  Co.  v.  Brad- 
ford, 27  Cal.  360,  declaring,  in  reference  to  the  burden 
of  proof  resting  on  the  claimant  of  an  adverse  title, 
"if  he  leaves  it  doubtful  whether  the  enjoyment  was 
adverse,  known  to  the  owner  and  uninterrupted,  it  is 
not  conclusive  in  his  favor." 

We  submit,  that  plaintiffs  have  not  met  the  require- 
ments of  the  rules  above  declared,  and  consequently 
their  plea  of  right  or  title  by  adverse  use  m/ast  be  re- 
jected. 

We  wish  to  note  particularly  the  assertion  of  coun- 
sel, at  page  140  of  their  brief,  under  the  head  of 
''Prescription" : 

"This  possession  and  use  of  the  waters  of  Bishop 
Creek  has  been,  during  the  years  1914,  1915,  1916, 
1917  and  1918,  continuous,  uninterrupted,  exclusive, 
peaceable,  open,  notorious,  adverse,  under  a  claim  of 
right  and  hostile  to,  and  as  an  invasion  of  defendants' 
claims." 

We  take  it  that  counsel,  by  this  assertion,  intended 
to  indicate  their  purpose  to  place  their  case  as  to  al- 
leged adverse  title  particularly  on  the  events  of  the 
five-year  period  immediately  preceding  1919,  and  to 
keep  away  from  the  period  1906-13,  during  which  the 
companies  were  developing  their  announced  policy  of 


—61— 

storing-  and  impounding  only  the  "waste  and  surplus 
waters"  of  Bishop  Creek  and  were  thereby  impressing 
the  people  of  the  Bishop  region  with  the  belief  that  the 
operations  of  the  companies  on  that  stream  would  be 
friendly,  and  not  hostile  or  adverse. 

As  regards  the  five-year  period  mentioned  by  coun- 
sel w^ater  conditions  on  the  creek  during  such  period 
were  accurately  described  by  Mr.  Young  of  the  asso- 
ciation, as  follows  [Tr.  p.   1170]: 

"Q.  During  that  period,  from  1913  to  1918,  did 
the  irrigators  get  the  supply  of  water  they  required, 
and  where  there  was  a  shortage  was  it  turned  down 
from  the  reservoirs  of  the  company  in  pursuance  of 
that  arrangement,  where  word  was  carried  to  the  com- 
pany as  to  the  quantity  of  w^^ater  required,  and  they 
would  release  it? 

A.     Yes." 

Plaintififs'  Exhibit  "1-F''  shows  that  the  years  1914, 
1915  and  1916  were  above  the  average  as  regards 
stream  flow;  1917  was  practically  normal,  and  1918 
was  normal,  excepting  the  months  of  May  and  August. 
During  the  years  1914  to  1916,  inclusive,  the  irrigators 
had  plenty  of  water,  and  any  shortage  experience  by 
them  in  the  years  1917  and  1918,  as  stated  by  Mr. 
Young  and  other  witnesses,  was  met  by  curtailing  the 
Hillside  supply.  In  a  word,  the  evidence  in  the  case 
shows  that  the  basis  of  alleged  hostile  title  in  plaintififs, 
to-wit,  open,  notorious,  uninterrupted  and  adverse  use 
under  color  (jf  right,  did  not  exist  during  the  five-year 
period,  namely,  1914  to  1918,  specially  relied  on  by 
plaintiffs. 


—62— 

In  Anaheim  \V.  Co.  v.  Semi-Tropic  W.  Co.,  supra, 
it  is  declared : 

**In  order  to  establish  a  right  by  prescription, 
the  acts  by  which  it  is  sought  to  establish  it  must 
operate  as  an  invasion  of  the  right  of  the  party 
against  whom  it  is  set  up.  The  enjoyment  relied 
upon  must  be  of  such  a  character  as  to  afford 
ground  for  an  action  by  the  other  party.  This  is 
thoroughly  settled." 

Wiel,  on  Water  Rights,  section  588,  says : 

"The  use  must  'substantially  interfere'  with  the 
property  of  the  owner;  there  must  be  an  actual 
invasion  of  his  property.  There  must  have  been 
such  a  use  of  the  water,  and  such  damage,  as 
would  raise  a  presumption  that  complainant  would 
not  have  submitted  to  it  unless  the  respondents 
had  acquired  the  right  to  so  use  it.  The  burden 
is  on  the  adverse  claimant  to  show  such  invasion." 

Union  Mill  &  Mining  Co.  v.  Dangberg,  81  Fed.  73, 

91,  says: 

"The  burden  of  proving  an  adverse  uninter- 
rupted use  of  water,  with  the  knowledge  and  ac- 
quiescence of  the  party  having  a  prior  right,  is 
cast  on  the  party  claiming  it.  American  Co.  v. 
Bradford,  27  Cal.  360;  Gould,  Waters,  Sec.  341, 
and  authorities  there  cited.  Any  person  may  ob- 
tain exclusive  rights  to  water  flowing  in  a  stream 
or  river  by  grant  or  prescription  as  against  either 
riparian  owners  on  the  stream  or  the  prior  ap- 
propriation of  the  water  by  other  parties.  But 
the  right  acquired  by  prescription  is  only  com- 
mensurate with  the  right  enjoyed.  The  extent  of 
the  enjoyment  measures  the  right." 

Also, 

^<*  *  *  j^Qj.  ^^j-^  ^Yi\s  right  be  acquired  if, 
during  the  time  in  which  such  right  is  claimed  to 


—63— 

have  accrued,  there  has  been  an  abundant  supply 
of  water  in  the  stream  or  river  for  all  other 
claimants." 

When  we  think  of  the  apparently  fair,  friendly  and 
deferential  attitude  assumed  by  the  Hillside  and  power 
interests  toward  the  vested  and  prior  rights  of  irri- 
gation on  Bishop  Creek  during  the  period  when  those 
interests  were  seeking  to  gain  a  foothold  and  to  es- 
tablish their  projects  on  that  stream,  and  of  the  neigh- 
borly treatment  accorded  by  the  farmers  to  the  repre- 
sentatives of  those  interests  during  that  period,  we 
cannot  but  regard  plaintiffs'  plea  of  adverse  title  in 
this  case  as  partaking  of  the  nature  of  fraudulent 
imposition,  which  is  never  rewarded  in  a  court  of 
equity. 

III. 

Water  Rights  of  Defendants  Dixon,  Swall,  Gillespie, 
Pov^ers  and  Watterson  Brothers. 

1.  Defendant  Dixon  has  40  acres,  of  which  10 
acres  are  irrigated  from  the  Owens  River  Canal,  and 
the  other  30  acres,  ever  since  1887  and  prior  thereto, 
have  been  continuously  irrigated  from  Bishop  Creek. 
The  water  from  the  creek  reaches  this  land  across  the 
land  (jf  defendant  (jillespie,  containing  80  acres,  and 
part  of  the  original  Blorton  ranch  of  160  acres.  For- 
merly, the  water  was  conveyed  to  Dixon's  land  through 
a  ditch,  but  owing  to  rising  water  table  and  tramping 
of  stock  the  outlines  of  the  ditch  disappeared   [Tr.  p. 


—64- 

1468],  Init  the  supply  has  been  comino-  continuously 
over  the  same  ground.  Dixon  acquired  a  one-fifteenth 
interest  in  the  old  Horton  appropriation.  [Tr.  p. 
1469.] 

In  view  of  the  fact  that  the  water  right  of  defend- 
ant Dixon  has  all  of  the  elements  of  a  legal  appropria- 
tion initiated  prior  to  the  rights  of  plaintiffs  and  main- 
tained continuously  to  the  present  time,  there  is  no 
ground  for  questioning  the  existence  or  priority  of 
such  right. 

2.  Defendants  Swall  and  Gillespie  each  own  80  acres 
of  the  old  Horton  160-acre  place,  and  each  has  a  water 
supply  from  the  creek  based  on  an  appropriation  made 
by  said  Horton  long  prior  to  1887,  and  which  has 
been  maintained  by  actual  and  continuous  diversion 
and  use  on  the  lands  now  owned  by  them,  to  the  pres- 
ent day.  The  priority  of  these  w^ater  rights  is  stipu- 
lated by  counsel  for  plaintiff's  [Tr.  pp.  1430  and  1444] 
subject  to  the  reservation  that  the  arbitrator  shall  de- 
termine the  legal  bearing  thereon  of  the  fact  that  in 
1905  said  Horton  made  a  deed  to  the  town  of  Bishop, 
purporting  to  convey  50  inches  of  his  original  appro- 
priation from  Bishop  Creek  and  that  by  mesne  con- 
veyances such  right  has  passed  to  intervenor,  Harvey 
Adams. 

There  is  no  evidence  of  the  exercise  or  use  of  the 
purported  50-inch  right  between  1905  and  1917  when 
it  passed  to  said  Adams.  In  the  cases  of  Swall  and 
Gillespie  we  urge,  as  in  the  case  of  Dixon,  that,  de- 


—65— 

spite  the  giving  and  effect  of  said  deed  by  Horton, 
they  have  the  benefit  of  an  ancient  appropriation  which 
has  been  continuously  maintained  by  actual  diversion 
and  use  as  provided  by  law, 

3.  The  total  acreage  irrigated  from  Bishop  Creek 
under  rights  by  appropriation  initiated  in  1887  or  ear- 
lier, amounting  to  the  equivalent  of  8,570  acres,  includes 
60  acres  owned  by  defendant  E.  W.  Powers  and  156 
acres  owned  by  defendant  Watterson  Bros.,  Inc.  These 
holdings  are  and  have  been  irrigated  through  the  so- 
called  "Powers  Ditch,"  which  heads  between  power 
plants  5  and  6  on  Bishop  Creek.  This  ditch  is  2^/2 
miles  long  and  has  a  capacity  of  about  800  miner's 
inches.  In  1886  Powers  posted  and  recorded  a  notice 
of  appropriation  of  500  inches  of  water  in  Bishop 
Creek.  [Tr.  p.  2134.]  He  owned  at  that  time  640 
acres  of  land  which  he  had  taken  up  under  a  desert 
entry.  Of  these  lands  Powers  still  owns  80  acres,  400 
acres  are  owned  by  Watterson  Bros.,  and  160  acres 
by  the  Hillside  Water  Company,  grantee  of  certain 
parties  to  whom  Powers  sold  the  same.  [Tr.  pp. 
2130-1.] 

Powers  commenced  the  construction  of  his  ditch 
prior  to  his  approi)riation,  to-wit,  in  1885.  [Tr.  p. 
2131.]  He  completed  the  ditch  in  1887.  [Tr.  p.  2132.] 
He  diverted  that  year  onto  his  land  through  the  ditch 
from  the  creek  between  700  and  800  inches  of  water. 
[Tr.  p.  2135.]  This  ditch  formerly  diverted  directly 
from  the  creek.      vSubsequently   the   power  companies, 


—66— 

to  suit  their  own  plans  and  without  o1)taining  leave 
from  the  parties  interested  in  the  ditch,  changed  the 
heading  so  that  the  ditch  would  take  its  supply  from 
the  pressure  line  of  Power  Plant  6.     [Tr.  p.  2133.] 

Of  the  80  acres  still  owned  by  Powers,  60  acres  are 
under  irrigation  through  his  ditch  from  Bishop  Creek. 
Of  the  400  acres  owned  by  Watterson  Bros.,  156  acres 
are  under  irrigation  from  the  creek  through  that  ditch. 

The  Powers  ditch  has  never  been  enlarged  since  its 
original  construction.  [Tr.  p.  2187.]  Measurements 
of  flow  in  the  ditch  (referred  to  at  pages  68-70  of 
plaintifl^s'  opening  brief)  showed  an  average  of  12.7 
second  feet  in  July  and  7 .1  second  feet  for  August, 
1919,  and  an  average  of  7.6  second  feet  for  May,  8.6 
second  feet  for  June,  8.5  second  feet  for  July,  7 .^  sec- 
ond feet  for  August,  and  5.6  second  feet  for  Septem- 
ber, 1920. 

We  contend  that  the  rights  of  defendant  Powers 
for  the  irrigation  of  his  60  acres,  and  of  defendant 
Watterson  Bros,  for  the  irrigation  of  their  156  acres 
from  Bishop  Creek,  are,  so  far  as  plaintiffs  are  con- 
cerned, not  affected  by  the  so-called  exchange  agree- 
ment betw^een  the  users  from  the  Powers  ditch  and  the 
Bishop  Creek  Water  Association,  originally  made  in 
1904  and  renewed  in  1913.  The  Powers  diversion 
from  Bishop  Creek  through  the  Powers  ditch,  for  the 
irrigation  of  his  60  acres,  and  the  156  acres  of  Wat- 
terson Bros.,  is  legalized  and  sustained  by  an  actual 
appropriation  made  by  him  in  the  manner  prescribed 
by  law,  and  it  dates  from  1886.     Plaintiff'  companies 


-67- 

never  had  any  arrangement  with  the  users  of  the 
Powers  ditch  that  the  diversion  from  the  creek,  by 
means  of  that  ditch,  should  be,  to  any  extent,  by  iway 
of  exchange  for  water  to  be  delivered  from  the  Owens 
River  Canal  into  the  creek,  or  any  arrangement  or 
understanding  with  the  users  from  the  Powers  ditch 
that  their  diversion  of  water  from  the  creek  should 
be,  in  any  manner  or  upon  any  basis,  other  than  in 
pursuance  of  the  original  Powers  appropriation  of 
1886.  That  appropriation  was  a  valid  right  for  17 
years  prior  to  the  original  so-called  exchange  agree- 
ment with  the  Bishop  Creek  Water  Association,  and 
that  association  never  represented,  or  purported  to 
represent,  any  of  the  plaintiff  companies  or  any  person 
or  interest  preceding  them. 

In  1912  [Tr.  p.  2623]  the  power  companies,  on  their 
own  motion,  and  clearly  in  recognition  of  the  rights 
of  the  users  from  the  Powers  ditch,  connected  up  the 
pressure  line  between  plants  5  and  6  and  that  ditch 
so  as  to  enable  the  companies  to  divert  the  waters  of 
the  creek  above  the  ditch  heading.  Later,  in  1913 
[Tr.  p.  2796],  the  valve  on  the  pressure  line  for  dis- 
charging water  into  the  ditch  was  made  larger  by  the 
companies. 

W.  W.  Watterson,  of  Watterson  Bros.,  Inc.,  testi- 
fied [Tr.  pp.  2621-2]: 

"Q.  You  remember  the  installation  of  the  first 
valve,  or  first  connection  made,  connecting  uj)  the  ditch 
with  the  pipe?     You  remember  about  that? 

A.     Yes,  I  know  about  that. 


—68— 

Q.  As  appears  here,  that  was  done  by  the  company 
itself.  Do  you  remember  also  the  circumstance  of  the 
installation  by  the  company  of  a  larger  valve,  to  allow 
a  larger  delivery  from  Bishop  Creek? 

a/    Yes. 

O.     Did  you  have  anything  to  do  with  that? 

A.  The  first  valve  installed  was  not  large  enough 
to  deliver  the  amount  of  water  that  the  owners  of  the 
ditch  were  entitled  to,  and  complaint  was  made  to  the 
company,  and  they  afterwards  removed  that  one  and 
put  in  a  larger  valve. 

Q.  Do  you  understand  that  the  first  valve  was  in- 
stalled without  consulting  the  irrigators,  or  owners  of 
land,  and  the  company,  upon  complaint  being  made, 
installed  a  larger  one? 

A.  Yes.  We  were  the  owners  of  that  property  at 
that  time,  but  we  were  agents  for  people  who  had  a 
right  in  that  ditch  at  that  time.  Our  bank  represented 
the  absent  property  owner  at  that  time. 

O.  Was  that  change  of  valve  done  with  reference 
at  all  to  any  exchange  of  water,  or  arrangement  for 
the  exchange  of  water? 

A.     No/' 

Plaintiffs  provided  for  the  Powers  ditch  appropria- 
tion, not  in  deference  to  the  exchange  agreement,  with 
w^hich  they  had  no  connection  or  concern,  but  only 
because  plaintiffs,  upon  their  advent  on  the  creek, 
found  that  ditch  in  operation  delivering  water  from 
the  creek  onto  the  lands  of  the  users  from  the  ditch. 
So  far  as  the  evidence  shows,  the  valves  for  discharg- 
ing water  from  the  creek  into  the  ditch  were  installed 
by  the  companies  unconditionally,  and  their  recognition 
of  the  existence  and  priority  of  the  rights  in  the  creek 
of  the  ditch  users  was  unqualified. 


-69— 

According-  to  the  evidence,  the  users  of  creek  water 
through  the  Powers  ditch  received  their  supply  at 
times  of  surplus  flow  without  reference  to  any  ex- 
change and  without  intervention  or  interference  on 
the  part  of  the  association.  [Tr.  pp.  2503-4;  2523; 
2620.] 

The  lands  of  Powers  and  Watterson  Bros,  are  lo- 
cated in  a  section  lying  separate  and  apart  from  the 
main  area  under  Bishop  Creek.  Moreover,  these  lands 
are  composed  of  soil  exhibiting  maximum  porosity  and 
coarseness,  and  while,  according  to  the  evidence  of 
Mr.  Clausen  and  Mr.  Shuey,  the  average  duty  of 
water  in  Zone  1  is  7  acre  feet,  the  lands  of  Powers 
and  Watterson  reasonably  and  fairly  are  entitled  to 
the  maximum  allowance  in  Zone  1  of  the  Shuey  classi- 
fication. 

Finally,  regarding  the  irrigation  of  the  216  acres 
of  Powers  and  Watterson  Bros.,  the  daily  mean  flow 
through  the  Powers  ditch  for  these  lands,  as  observed 
and  recorded  by  witness  McCarthy,  covering  the  irri- 
gation season  of  1920  [Tr.  p.  2184],  was  6.9  second 
feet.  This  meant  a  usage  for  six  months  of  11.5  acre 
feet,  and  there  is  no  evidence  or  claim  of  any  waste 
or  run-off. 


—70— 

IV. 

Riparian  Rights  of  Defendants  Are  Not  Affected  by 
the  Alleged  Adverse  Use  of  Plaintiffs,  Beyond 
the  Right  to  Divert,  Store  and  Release  for 
Power  Operations,  the  Surplus  and  Waste 
Waters  of  the  Creek. 

Riparian  rights  on  Bishop  Creek  pertain  to  4,078.1 
acres,  and  the  question  arises  whether  plaintiffs  have 
acquired  title  by  prescription  or  adverse  use  superior 
to  such  rights.  Reference  to  a  few  of  the  authorities 
regarding  the  law  of  riparian  rights  in  this  state  would 
seem  to  be  appropriate  at  this  time. 

In  Shurtleff  v.  Kehrer,   163  Cal.  26,  26,  the  court 

says: 

"Water  flowing  in  a  stream  is  real  property. 
(Stanislaus  W.  Co.  v.  Backman,  152  Cal.  726 
(15  L.  R.  A.  (N.  S.)  359,  93  Pac.  858).)  It  is 
parcel  of  the  riparian  land,  inseparably  annexed 
to  it.  (Lux  V.  Haggin,  69  Cal.  391  (4  Pac.  919, 
10  Pac.  674) ;  Hargrave  v.  Cook,  108  Cal.  77  (30 
L.  R.  A.  390,  41  Pac.  18).)  The  diversion  of 
water  of  the  stream  is  an  injury  to  the  freehold 
of  the  riparian  owner  and  may  be  enjoined  with- 
out a  showing  of  other  monetary  damages.  (Ana- 
heim U.  W.  Co.  V.  Fuller,  150  Cal.  333  (11  L.  iR. 
A.  (N.  S.)  1062,  '^%  Pac.  978),  and  cases  there 
cited.)" 

In  Miller  &  Lux  v.  Madera  Canal  etc.  Co.,  155  Cal. 
59,  plaintiff,  as  riparian  owner  along  the  lower  Fresno 
River,  sought  to  enjoin  the  defendant  canal  company 
from  diverting  the   flood   waters   thereof   for  storage 


—71^ 

in  reservoirs.  The  canal  company  is  the  owner  of  a 
system  of  ditches  for  lands  in  the  vicinity  of  Madera, 
and  planned  to  store  the  flood  waters  of  May  and 
early  June  in  the  river  for  use  later  in  the  season. 
The  company  claimed  that  the  waters  which  it  in- 
tended to  divert  and  store  could  not  be  considered  part 
of  the  natural  flow  to  which  the  riparian  owners  were 
entitled,  and  that  the  use  of  the  flood  waters  by  the 
plaintiff  was  too  wasteful  and  unreasonable  to  be  tol- 
erated.    The  court  says: 

''What  the  riparian  proprietor  is  entitled  to  as 
against  non-riparian  takers  is  the  ordinary  and 
usual  flow  of  the  stream.  There  is  no  good  rea- 
son for  saying  that  the  greatly  increased  flow 
following  the  annually  recurring  fall  of  rain  and 
melting  of  snow  in  the  region  about  the  head  of 
the  stream  is  anv  less  usual  or  ordinarv  than  the 
much  diminished  flow  which  comes  after  the  rains 
and  the  melted  snows  have  run  off. 

"The  doctrine  that  a  riparian  owner  is  limited 
to  a  reasonable  use  of  the  water  applies  only  as 
between  dift'erent  riparian  proprietors.  As  against 
an  ai)propriator  who  seeks  to  divert  water  to  non- 
riparian  lands,  the  riparian  owner  is  entitled  to 
restrain  any  diversion  which  will  deprive  him  of 
the  customary  flow  of  water  which  is  or  may  be 
beneficial  to  his  land.  He  is  not  limited  by  any 
measure  of  reasonableness." 

In  the  last  named  case  it  was  suggested  to  the  court 
that  a  different  rule  should  apply  in  a  semi-arid  climate 
like  that  of  California,  where  the  fall  of  rain  and 
snow  occurs  during  only  a  limited  period  of  the  year, 
and,   consequently,    streams   carry   in    some   months   a 


—72— 

• 

flow  of  water  greatly  exceeding  that   flowing-  during- 

the  dry  seasons. 

On  this  point  the  court  declared: 

"But  no  authority  has  been  cited,  and  we  see 
no  sufficient  ground  in  principle,  for  holding  that 
the  rights  of  riparian  proprietors  should  be  lim- 
ited to  the  body  of  water  which  flows  in  the 
stream  at  the  period  of  greatest  scarcity.  What 
the  riparian  proprietor  is  entitled  to  as  against 
non-riparian  takers  is  the  ordinary  and  usual  flow 
of  the  stream.  There  is  no  good  reason  for  say- 
ing that  the  greatly  increased  flow  following  the 
annually  recurring  fall  of  rain  and  melting  of 
snow  in  the  region  about  the  head  of  the  stream 
is  any  less  usual  or  ordinary  than  the  much  di- 
minished flow  which  comes  after  the  rains  and 
the  melted  snows  have  run  off." 

Miller  v.  Bay  Cities  Water  Co.,  157  Cal.  256,  sup- 
ports the  rule  laid  down  in  the  last  named  case. 

In   Heilbron  v.   Canal   Co.,   7"^   Cal.   431,   the  court 

savs: 

"The  right  claimed  by  the  defendant  is  not  to 
appropriate  the  surplus  waters  of  extraordinary 
floods,  when  the  flow  is  more  destructive  than 
useful.  It  claims  as  an  appropriator  a  certain 
quantity  of  water,  adversely  to  the  riparian  pro- 
prietor; and  if  the  claim  be  valid,  it  may  be  as- 
serted at  any  stage  of  the  water.  But  the  rights 
of  the  riparian  proprietor  do  not  depend  upon 
the  quantity  of  water  flowing  in  the  stream.  Nor 
can  that  flow  be  said  to  be  an  extraordinary  flood 
which  can  be  counted  upon  as  certain  to  occur 
annually,  and  to  continue  for  months." 

In  Gallatin  v.   Corning  Irr.  Co.,   163  Cal.  405,  the 
court,  after  referring  to  the  rule,  laid  down  in  certain 


—73— 

earlier   decisions  permitting-  flood   waters   to  be   taken 

for  non-riparian  uses  at  times   when  the   flood   is  so 

great  that  the  water  diverted  could  not  be  used  by  the 

riparian    owner,    and    the    diversion    would   cause    no 

injury  to  him  or  his  land,  and  would  greatly  benefit 

the  appropriator,  says: 

"This  rule  does  not  conflict  with  the  decisions 
in  the  Bay  Cities  and  Miller  &  Lux  cases  first 
above  cited.  In  those  cases  the  water,  in  ques- 
tion, although  in  a  sense  high  water,  or  flood 
water,  was  nevertheless  a  part  of  the  regular  and 
usual  flow  of  the  stream  for  a  considerable  part 
of  each  year  and  at  a  time  when  such  flow  was 
of  substantial  use  and  benefit  to  the  riparian 
lands,  or  the  flow  of  such  waters  in  their  accus- 
tomed place  was  necessary  to  the  gathering  of 
water  in  subterranean  strata  from  which  the  own- 
ers of  overlying  land  were  entitled  to  take  it." 

The  ninety  second  foot  regulation,  during  the  irri- 
gating season,  which  plaintiffs  claim  to  have  fastened 
on  the  Bishop  Creek  users  by  prescription,  is  a  myth. 
Such  a  restricted  flow  was  never  imposed  on  such 
users  by  plaintiffs  under  claim  of  right  or  for  the 
statutory  period  or  at  all,  except  possibly  for  a  few 
moments  at  a  time,  within  the  limits  of  two  or  three 
months  at  scattering  intervals  when  the  run-off  was 
abnormally  low. 

Plaintiff's  claim  that,  by  prescription  or  adverse  use, 
they  have  acquired  the  right  to  so  handle  Bishop 
Creek,  through  storage,  in  connection  with  power 
operations,  and  in  connection  with  diversions  for  the 
Hillside  lands,  as  to  give  users  outside  of  the  IJillside 


—74— 

lands  only  90  second  feet  of  water  durint^-  the  irrigat- 
ing season.  It  is  obvious  that,  in  order  to  substantiate 
such  claim,  plaintiffs  were  required  to  prove  that  they, 
for  at  least  five  consecutive  years  prior  to  the  com- 
mencement of  this  suit,  openly,  notoriously,  continu- 
ously, uninterruptedly  and  under  claim  of  title  so  used 
the  waters  of  the  creek  for  their  purposes  as  to  make 
available  for  the  benefit  of  the  users  below  only  90 
second  feet  of  w'ater  during-  the  irrigating  season. 
Plaintiffs'  own  testimony  (Plffs.'  Ex.  1-F)  completely 
disproves  this  claim.  It  shows  that  the  average  flow 
of  the  creek  during  the  irrigating  season,  available  for 
the  irrigators,  including  the  usage  on  the  Hillside 
lands,  which  plaintiffs  claim  is  10  second  feet,  for  the 
years  1908  to  1918,  inclusive,  was  as  follows: 

1908 122   second    feet 

1909 201 

1910 152 

1911 205 

1912 120 

1913 96       '* 

1914 180 

1915 160       " 

1916 183 

1917 135 

1918 114 

These  figures  show  that  the  average  flow,  during 
the  irrigating  season,  for  the  period  1908  to  1918,  in- 
clusive, was  152  second  feet;  for  the  five-year  period 
1914  to  1918,  inclusive,  was  154  second  feet;  for  the 


(I 


ii  II 


—75— 

five-year  period  1913  to  1917,  inclusive,  was  151  sec- 
ond feet;  for  the  five-year  period  1912  to  1916,  inclu- 
sive, was  148  second  feet;  for  the  five-year  period 
1911  to  1915,  inclusive,  was  152  second  feet;  for  the 
five-year  period  1910  to  1914,  inclusive,  was  151  sec- 
ond feet;  for  the  five-year  period  1909  to  1913,  inclu- 
sive, was  155  second  feet;  and  for  the  five-year  period 
1908  to  1912,  inclusive,  was  160  second  feet. 

Even  if  the  10  second  feet  claimed  for  the  Hillside 
lands  is  proper,  that  would  not  reduce  the  amount  for 
the  users  below  to  anything  like  90  second  feet  for 
the  irrigating  season,  to  which  plaintiffs  claim  they 
have  brought  the  rights  of  such  users  by  actual  ad- 
verse use  for  the  statutory  period  of  five  years.  More- 
over, according  to  the  evidence,  whenever  the  flow  of 
the  stream,  during  the  period  1908  to  1918,  has  fallen 
below  the  requirements  of  the  users  of  Bishop  Creek 
other  than  the  Hillside  lands,  the  use  of  water  on  the 
Hillside  lands  has  been  interrupted. 

In  this  connection,  we  wish  to  add  that  the  evi- 
dence, as  examined,  and  detailed  in  another  part  of 
this  brief,  shows,  without  conflict,  that  the  supply  of 
water  from  the  creek  for  the  Hillside  lands  has  always 
been  subject  to  the  requirements  of  the  users  below. 

We  have  examined  elsewhere,  in  connection  with 
defendants'  rights  by  appropriation,  the  evidence  re- 
garding plaintiffs'  alleged  title  by  adverse  use,  and  it 
clearly  appeared  therefrom  that,  until  the  year  1919, 
and  shortly  before  the  commencement  of  this  suit, 
plaintiffs  never  claimed  the  right  to  store  the  waters 


—76— 

of  the  creek,  excepting  the  surplus  and  waste  waters 
thereof.  They  never  for  five  consecutive  years  prior 
to  this  suit  exercised,  under  claim  of  title,  or  other- 
wise, such  right.  Plaintififs  did  store  something  more 
than  the  surplus  and  waste  waters  of  the  creek  in  a 
portion  of  1912,  a  portion  of  191v3,  a  portion  of  1917, 
and  a  portion  of  1918.  They  did  not  do  this  in  1914, 
1915,  or  1916.  They  did  store  something  more  than 
the  surplus  and  waste  waters  in  1908,  but  not  in  1909, 
1910,  or  1911. 

Plaintififs,  therefore,  may  not  assert  title  by  pre- 
scription to  the  right  to  store  any  but  the  surplus  and 
waste  waters  of  the  stream. 

V. 

Defendants  Are  Not  Estopped. 

Plaintififs,  in  their  "further  and  separate  answer 
and  defense  to  the  cross-bills"  (pp.  59-69),  assert  that 
the  defendants  are  barred  by  their  laches  from  main- 
taining such  cross-bill,  and  are  estopped  to  deny  the 
right  of  plaintififs  to  impound  the  waters  of  Bishop 
Creek  during  the  period  of  high  flow  each  year  so  as 
to  fill!  the  enlarged  Hillside  reservoir  and  Sabrina  res- 
ervoir, and  to  release  such  stored  waters  as  may  be 
required  for  the  operation  of  the  power  plants  of  the 
plaintifif  companies  on  that  stream,  subject  only  to  the 
limitation  that  the  flow  of  the  stream  available  for  the 
use  of  defendants  shall  not  be  reduced  below  a  daily 
average  of  90  second   feet;   or  to  deny  the  right  of 


—77— 

plaintiffs  to  fluctuate  the  discharge  of  the  waters  of 
the  creek  through  such  plants  as  may  be  required  in 
their  operation. 

The  grounds  upon  which  it  is  claimed  that  defend- 
ants are  so  estopped  are,  that  they  stood  by  and,  with- 
out objection  or  protest,  acquiesced  in  the  construction 
of  the  two  reservoirs  mentioned,  and  of  the  electric 
works  of  the  plaintiff  power  companies,  for  generating 
electric  energy  from  the  waters  of  the  creek  and  trans- 
mitting the  same  to  various  communities  in  this  state, 
and  in  Nevada,  for  distribution  for  domestic  use, 
pumping  for  the  irrigation  of  land,  and  other  purposes; 
that  such  works  cost  many  millions  of  dollars  and  have 
become  an  important  utility  in  meeting  the  power  re- 
quirements of  the  sections  reached  by  their  lines;  that 
defendants,  and  their  predecessors  in  interest,  knew 
that  the  storing  of  water  from  the  creek  in  such  res- 
ervoirs and  the  consequent  equalizing  of  the  stream  so 
as  to  provide  uniform  service,  were  necessary  in  con- 
nection with  the  establishment  and  operation  of  such 
power  systems;  and  that  defendants  by  their  silence 
gave  tacit  approval  and  assent  to  the  construction  and 
operation  of  such  reservoirs  for  the  purposes  de- 
scribed. 

Reference  to  pertinent  authorities  will  be  an  advan- 
tage, at  this  point.  Esto])])el  has  been  defmed  as  "a 
preclusion  in  law  which  ])revents  a  man  alleging  or 
denying  a  fact  in  consequence  of  his  own  previous  act, 
allegation,  or  denial  of  a  contrary  tenor."  Coogler  v. 
Rogers.  25  Fla.  853,  873. 


—78— 

Boggs  V.  Merced  Mining  Co.,  14  Cal.  279,  in  which 

the  opinion  of  the  court  was  written  by  Field,  C.  J., 

cites    and    quotes    with    approval    Commonwealth    v. 

Moltz,   10  Barr  531,  in  which  the  Supreme  Court  of 

Pennsylvania,  after  citing  several  cases  in  which  the 

doctrine  of  equitable  estoppel  was  applied,  said : 

"In  all  these  cases  there  is  some  ingredient 
which  would  make  it  a  fraud  in  a  party  to  insist 
on  his  legal  rights." 

Also  : 

"To  the  constitution  of  this  species  of  estoppel 
at  least  three  ingredients  seem  to  be  necessary: 
first,  misrepresentation,  or  wilful  silence  by  one 
having  knowledge  of  the  fact ;  second,  that  the 
actor  having  no  means  of  information,  w^as,  by  the 
conduct  of  the  other,  induced  to  do  what  other- 
wise he  would  not  have  done,  and,  thirdly,  that 
injury  would  ensue  from  a  permission  to  allege 
the  truth.  And  these  three  things  must  appear 
afFirinatively." 

Lux  V.  Haggin,  69  Cal.  255,  266,  in  a  discussion  of 

the  subject  of  estoppel  /;/  pais,  Vv'hich  includes  all  forms 

of  estoppel  not  arising  from  a  record,  from  a  deed,  or 

from  a  written  contract,  says: 

"There  are  estoppels  in  pais,  as  where  a  de- 
fendant is  induced  to  act  by  the  declarations  or 
conduct  of  a  plaintiff, — which  are  a  defense  both 
at  law  and  equity.  Here  we  cannot  discover  the 
elements  of  such  an  estoppel.  The  defendant  has 
acted  with  full  knowledge  of  all  the  facts,  and, 
as  must  be  presumed,  with  full  knowledge  of  the 
law  controlling  the  rights  of  the  parties.  To  con- 
stitute the  estoppel  the  party  claiming  the  benefit 
of  it  must  be  destitute  of  knowledge  of  his  own 


—79— 

legal  rights  and  of  the  means  of  acquiring  such 
knowledge." 

Also: 

*'To  constitute  such  an  estoppel  it  must  also  be 
shown  that  the  person  sought  to  be  estopped  has 
made  an  admission  or  done  an  act,  zmth  flic  inten- 
tion of  influencing  the  conduct  of  another,  or  that 
he  had  reason  to  believe  would  influence  his  con- 
duct, inconsistent  with  the  evidence  he  proposes 
to  give  or  the  title  he  proposes  to  set  up ;  that  the 
other  party  has  acted  upon  or  been  influenced  by 
such  act  or  declaration;  that  the  party  so  influ- 
enced will  be  prejudiced  by  allowing  the  truth  of 
the  admission  to  be  disproved." 

In  the  Lux  case,  the  fact  relied  on  as  proving  the 
alleged  estoppel  was  that  plaintiffs  had  knowledge  of 
the  construction  of  expensive  canals  and  other  works 
of  defendant,  while  they  were  in  progress,  and  did  not 
object  to  them.  The  court,  however,  holds,  "the  bare 
fact  that  ditches,  etc.,  were  constructed  with  the 
knowledge  of  the  plaintiff's,  though  at  great  expense, 
without  objection  by  plaintiff,  is  not  sufficient  to  con- 
stitute (  such  )  an  estoppel." 

Murphy  V.  Clayton,  113  Cal.  153,  160,  which  cites 
with  approval  Boggs  v.  Merced,  etc..  Co.,  supra,  and 
Lux  V.  Haggin,  supra,  regarding  estopi)el  through  con- 
duct, says: 

"To  constitute  such  an  estoppel  it  must  also  be 
shown  that  the  person  sought  to  be  estoi)ped  has 
made  an  admission  or  done  an  act,  ivitli  flic  in- 
tention of  influencing  the  conduct  of  an(jther,  or 


—80— 

that  he  had  reason  to  believe  would  influence  his 
conduct,  inconsistent  with  the  evidence  he  pro- 
poses to  give,  or  the  title  he  proposes  to  set  up; 
that  the  other  party  has  acted  upon  or  been  in- 
fluenced by  such  act  or  declaration ;  that  the  party 
so  influenced  will  be  prejudiced  by  allowing-  the 
truth  of  the  admission  to  be  disapproved.'' 

"For  the  application  of  the  doctrine  of  equitable 
estoppel  there  must  generally  be  some  intended 
deception  in  the  conduct  or  declaration  of  the 
party  to  be  estopped,  or  such  gross  negligence  on 
his  part  as  to  amount  to  constructive  fraud,  by 
which  another  has  been  misled  to  his  injury." 

Brant  v.  Iron  Co.,  93  U.  S.  335,  23  L.  Ed.  927. 

Smyth  V.  Neal,  49  Pac.  (Ore.)  850,  was  a  suit  to 
restrain  the  defendant  from  diverting  water  from  a 
stream  at  a  point  thereon  above  the  land  of  plaintiff,  a 
prior  appropriator.  One  of  the  questions  transmitted  w^as 
whether  plaintiff  was  estopped  to  question  any  appro- 
priation the  defendant  may  have  acquired.  The  court 
held  that  plaintiff,  by  making  favorable  representations 
to  the  defendant  of  the  desirability  of  his  neighbor- 
hood for  settlement,  and  by  discussing  methods  of 
irrigation,  and  stating  that  he  thought  the  supply  of 
water  from  the  creek  was  sufficient  for  them  both,  was 
not  estopped  to  claim  a  superior  right  to  so  much  of 
the  water  as  prior  and  during  all  such  time  he  had 
been  using  for  beneficial  purposes  to  the  knowledge  of 
the  defendant.  The  court  in  its  discussion  cites  with 
approval  Boggs  v.  Merced  etc.  Co.,  supra,  and  Lux  v. 
Haggin,  supra,  and  in  the  course  of  its  discussion  says: 

"These  elements  must  concur,  to  constitute  the 
estoppel  for  which  defendant  contends,  viz. :     He 


—81— 

must  have  been  destitute  of  knowledge  of  his  own 
legal  rights,  and  of  the  means  of  acquiring  such 
knowledge.  The  plaintifif  must  have  made  some  ad- 
mission or  done  some  act  with  the  inention  of  in- 
fluencing the  conduct  of  the  defendant,  or  which 
he  had  reason  to  believe  or  the  necessary  tendency 
of  which  would  be  to  so  influence  him,  inconsistent 
with  the  assertion  of  title  in  himself;  that  the 
defendant  has  acted  upon  or  been  influenced  by 
such  demeanor;  and  that  he  will  now  be  preju- 
diced by  allowing  the  eft'ect  of  such  acts  or  ad- 
missions to  be  controverted." 

Lower  Latham  Ditch  Co.  v.  Louden  Trr.  C.  Co.,  60 
Pac.  (Colo.,  1900)  629,  was  a  suit  to  compel  defendant 
to  recognize  the  decreed  priority  of  plaintifl"  to  the 
waters  of  the  South  Platte  River.  The  court  held  that 
the  fact  that  plaintiff  knew  for  several  years  that  his 
shortage  in  water  supply  was  caused  by  diversion  of 
the  waters  of  the  stream  by  defendant's  ditch,  and 
made  no  protest,  did  not  show  any  laches  or  acquies- 
cence on  his  part  amounting  to  an  abandonment  of 
his  decreed  priority.     The  court  says: 

"The  evidence  may  establish  that  from  July, 
1890,  down  to  the  date  when  this  suit  was  insti- 
tuted, plaintifl"  may  have  been  short  of  water, 
which  it  knew  was  caused  by  the  diversion  of  de- 
fendant companies'  ditches  from  the  I'ig  Thomp- 
son. No  protest  against  this  action  was  made. 
The  supply  of  water  in  the  streams  of  this  state 
is  variable.  In  times  of  low  water  iti  a  stream, 
or  its  tributaries,  which  is  the  common  .source  of 
supply  for  many  ditches,  some  will  be  unable  to 
obtain  their  full'share.  If  a  failure  of  one  divert- 
ing water  from  a  stream  to  protest  every  time  a 
shortage   in   his   sui)p]y    is   occasioned   by   another 


—82— 

withdrawing-  water  to  which  he  is  not  entitled  is 
to  be  construed  as  laches  or  acquiescence  amount- 
ing to  an  abandonment,  priorities  as  determined 
under  the  statutes  would  be  of  little  value." 

Further : 

"There  is  nothing  in  the  evidence  from  which 
to  infer  that  its  silence  was  prompted  by  an  inten- 
tion to  deceive  the  defendant  companies  with  re- 
spect to  their  rights,  nor  was  its  action  in  this 
respect  negligence  to  such  a  degree  as  to  amount 
to  constructive  fraud." 

And  then: 

'**  *  *  It  must  appear  that  the  party  against 
whom  such  estoppel  is  sought  to  be  established 
was  apprised  of  the  true  state  of  his  own  title; 
that  by  such  conduct  he  intended  to  deceive,  or 
thereby  was  guilty  of  such  negligence  as  to  amount 
to  a  fraud;  that  the  other  was  not  only  destitute 
of  all  knowledge  regarding  the  true  state  of  his 
title,  but  of  the  means  of  acquiring  such  knowl- 
edge. There  must  be  some  degree  of  turpitude 
in  the  conduct  of  a  party,  before  a  court  of  equity 
will  estop  him  from  the  assertion  of  his  title, 
when  the  efifect  of  the  estoppel  is  to  forfeit  his 
property,  and  transfer  its  enjoyment  to  another." 
Citing  Boggs  v.  Mining  Co.,  supra,  and  other  au- 
thorities. 

Now,  as  to  the  burden  of  proof  under  the  plea  of 
estoppel : 

"While  it  is  true  that  one  who,  having  a  right, 
induces  another  to  act  on  the  belief  that  the  right 
will  not  be  asserted,  will  not  be  afterwards  al- 
lowed to  exercise  it,  and  while  it  is  also  true  that 
one  may  estop  himself  by  acquiescence  or  by 
silence  when  he  ought  to  speak,  nevertheless  it  is 


—83— 

true  that  the  burden  is  upon  the  party  who  relies 
on  the  estoppel,  to  prove  clearly  and  unequivocally 
every  fact  essential  to  the  estoppel." 

Kroll  V.  Close,  82  Ohio  St.  190,  92  N.  E.  28,  29, 

28  L.  R.  A.  (N.  S.)  571. 

Since,    then,   plaintiffs   had   the   burden    oi   proving- 
"clearly  and  unequivocally  every  fact  essential  to  the 
estoppel,"  we  wish,  at  this  point,  to  determine  what 
such  essential   facts  are,   and  whether  plaintiffs  have 
established  the  same  as  required  by  the  rule.     Havinjq; 
now  in  mind  the  three  ingredients  necessary  to  con- 
stitute the  alleged  estoppel,  plaintiffs  were  required  to 
show,  first,  misrepresentation  or  wnlful  silence  on  the 
part  of  the  defendants,  with  knowledge  that  plaintiffs 
were  proposing  to  construct  and  operate  such  storage 
and    electrical,   works     on     Bishop     Creek     as     would 
substantially  invade  the  rights  of  such  defendants  in 
that  stream ;  second,  that  plaintiffs,  being  ignorant  and 
having  no  means  of  information,  were,  bv  the  conduct 
of   defendants,    induced   to   build   such    works    on   the 
creek,  which  they  would  not  have  done  had  defendants 
spoken  up,  calling  attention  to  the  threatened  invasion 
and  asserting  their  rights;  and  third,  that  defendants 
have   remained   silent   when,   in   good   conscience,   they 
should  have  spoken,  will  not  now  be  i)ermitted  to  allege 
the  truth  as  to  their  rights,  to  the  injury  of  plaintiffs. 
Plaintiffs,   in   their  answer   to   the  cross-bills,   make 
very   full   and   specific  allegations   to  show   est()])pel   of 
defendants,  but  we  have  searched  the  record   in   vain 
for  evidence  to  sustain  this  charge,  and  a  careful  ex- 


—84— 

aniination  of  their  counsel's  brief  discloses  no  specifica- 
tion of  any  such  evidence. 

As  we  have  seen,  the  law  requires  that  the  facts  to 
establish  estoppel  "must  appear  affirmatively."  In  this 
case  they  do  not  appear  at  all.  Misrepresentation  or 
wilful  silence  is  not  proven.  Inducement  of  plaintififs 
to  do  what  otherwise  they  would  not  have  done  is  not 
proven.  Admission  or  act  by  defendants  with  the 
intention  of  influencing,  or  which  they  had  reason  to 
believe  would  have  the  effect  of  influencing,  the  con- 
duct of  plaintiff's  inconsistent  with  the  rights  asserted 
by  defendants,  is  not  proven. 

In  a  word,  plaintiff^s  have  utterly  failed  to  sustain 
the  burden  assumed  by  them  in  this  case,  "to  prove 
clearly  and  unec|uivocally  every  fact  essential  to  the 
estoppel."     (Kroll  v.  Close,  supra.) 

What  we  have  said  above  concerning  estoppel  as 
aft'ecting  plaintiff's  and  defendants,  we  intend  should 
be  applied  also  to  their  respective  predecessors  in  in- 
terest. 

Our  discussion  of  the  events  from  1887  to  1918,  as 
bearing  on  plaintiffs'  claim  of  adverse  title,  might  ap- 
propriately be  repeated  here  to  refute  their  plea  of 
estoppel,  but  to  avoid  unduly  prolonging  this  brief,  we 
will,  instead  of  going  over  the  same  ground  for  the 
purposes  of  the  immediate  point,  refer  the  arbitrator 
to  such  discussion  in  connection  with  that  plea. 


—85— 
VI. 
Duty  of  Water. 


Plaintiffs'  Case. 

Plaintiffs,  consisting  of  one  irrigation  company  and 
two  power  companies,  all  under  one  control,  have 
undertaken  to  show  that  the  use  of  water  from  Bishop 
Creek  by  the  defendants  is  excessive  and  wasteful,  and 
that  under  a  more  economical  method  of  handling 
their  supply  there  would  be  sufficient  surplus  in  the 
stream  for  the  purposes  of  plaintiffs.  Hence  we  have 
the  issue  as  to  the  duty  of  water  on  the  Bishop  Creek 
area. 

In  Hough  V.  Porter,  98  Pac.  (Or.)  1083,  1101,  it  is 
stated : 

"In  determining  the  'duty  of  water',  or  quantity 
essential  to  the  irrigation  of  any  given  tract  of 
land,  we  must  take  into  consideration  the  charac- 
ter, the  climatic  conditions,  the  location  and  alti- 
tude of  the  lands  to  be  irrigated,  and  necessaiy 
manner  of  irrigation." 

There  are  special  reasons,  as  we  view  the  evidence 
in  this  case,  for  observing  the  foregoing  rule  in  study- 
ing irrigation  on  Bishop  Creek,  where  every  natural 
condition  involves  peculiar  difficulties  and  enforces  the 
maximum  use  of  water,  in  the  area  irrigated  fmm 
that  stream  we  have  heavy  gradients  varying  from  .^0 
to  100  feet  to  the  mile;  granitic  soils  of  marked  i)()r- 
osity,    with    coarse    open    material    interspersed    wilh 


—86— 

gravel  and  boulders  in  the  upper  section,  and  deposits 
of  decreasing-  coarseness  as  the  slope  of  the  delta  cone 
is  descended;  little  or  no  rainfall  during  the  irrigating 
season;  and  heavy  evaporation,  such  as  is  usually  ex- 
perienced in  semi-arid  regions. 

(a)     Plaintiffs  rely  on  inferior  ezndence. 

The  Hillside  Company,  like  the  defendants,  is  en- 
gaged in  irrigation  from  Bishop  Creek.  It  has  been 
engaged  in  that  business  for  more  than  thirty  years. 
It  has  several  hundred  acres  of  fertile  land  in  the 
upper  part  of  the  territory  supplied  from  that  stream, 
and  has  been  producing  crops  on  its  lands  similar  to 
those  produced  elsewhere  in  that  territory.  It  has 
ditches  and  head-gates  and  all  the  appliances  of  an 
irrigation  system,  and  has  been  in  a  position  to  provide 
the  best  and  most  improved  methods  of  handling  its 
water  supply.  Moreover,  being  under  the  same  con- 
trol as  the  power  companies,  we  should  expect  it  to 
show  the  same  efficiency  in  handling  its  irrigation 
operations  as  is  claimed  for  those  companies  in  hand- 
ling their  power  operations.  It  has  had  the  oppor- 
tunity to  learn,  both  from  its  own  experience  and  from 
the  experience  of  the  water  users  below,  how  irriga- 
tion on  Bishop  Creek  should  be  practiced  to  produce 
the  best  results  with  a  minimum  allowance  of  water. 
If  defendant  Trickey,  or  defendant  Rowan,  (jr  defend- 
ant Yandell.  or  any  other  defendant,  could  have  pro- 
duced larger  and  better  crops  with  less  water  if  prop- 


—87— 

erly  and  economically  applied,  plaintiffs  must  be  pre- 
sumed to  be  familiar  with  that  fact. 

Since  the  Hillside  Company  has  long  been  engaged 
in  irrigation  on  Bishop  Creek,  and  since  it  and  the 
other  plaintiffs  charge  that  defendants  could  produce 
better  results  with  less  water  than  they  have  been  pro- 
ducing, if  only  they  would  employ  more  efficient  meth- 
ods of  irrigation,  then  we  had  a  right  to  anticipate 
that  plaintiffs,  on  the  question  of  the  duty  of  water, 
would  rely,  mainly  at  least,  on  the  experience  of  the 
Hillside  Company  for  proof  of  the  charge  of  waste- 
fulness. Has  such  proof  been  forthcoming?  Has  the 
Hillside  Company,  as  a  practical  irrigator  on  Bishop 
Creek,  presented  facts  based  on  actual  irrigation  op- 
erations on  its  own  lands  to  establish  what  it  claims 
the  defendants  could  and  should  be  required  to  do  on 
their  lands  under  that  creek?  We  wish  to  point  out 
that  plaintiffs,  despite  their  insistence  that  the  irriga- 
tion methods  of  defendants  are  antiquated  and  waste- 
ful, did  not  present  the  slightest  evidence  from  actual 
experience  (jn  the  Hillside  lands  in  support  of  their 
claim. 

Plaintiffs,  instead  of  calling  the  farmers  and  zan- 
jeros  on  the  Hillside  lands  to  testify  as  to  the  (luantity 
of  water  required  to  i)ro(luce  croi)s  on  those  lands,  and 
thus  make  a  practical  basis  of  comparison  for  deter- 
mining the  water  requirements  of  other  lands  under 
Bishop  Creek,  called,  on  this  i)()int,  two  engineers 
from  San  Francisco  to  give  mere  ojjinion  evidence  as 
experts.     In  such  a  case,  as  stated  in  No.  Cal.  Power 


—88— 

Co.  V.  Waller,  174  Cal.  7>77 ,  386,  ''there  comes  into 
necessary  application  the  declared  presumption  of  our 
law  (Code  Civ.  Proc,  Sec.  1963,  Subd.  6)  that  'higher 
evidence  would  be  adverse  from  inferior  evidence  being 
produced'." 

Since,  then,  plaintiffs,  on  the  question  of  the  duty 
of  water  on  the  Bishop  Creek  area,  saw  fit  to  pit  opin- 
ion evidence  against  farmers'  evidence,  or,  to  put  it 
another  way,  to  oppose  theory  against  practice,  we 
wish,  at  this  point,  to  call  attention  to  certain  phases 
of  the  testimony  of  their  experts. 

(b)     Expert  testimony  for  plaintiffs. 

Mr.  Means,  called  by  plaintiff's  as  a  soil  and  irriga- 
tion expert,  gave  as  his  opinion  that  by  reconstructing 
and  improving  the  Bishop  Creek  irrigation  system  and 
properly  preparing  the  lands  for  the  application  of 
water,  and  by  the  elimination  of  waste,  a  total  gross 
or  head  duty  of  2.82  acre  feet  would  be  proper  and 
reasonable  for  the  irrigation  of  defendants'  lands. 

In  order  to  get  at  the  witness'  point  of  view  and 
basis  of  conclusion,  we  would  call  attention  to  the 
following  statements  in  his  testimony. 

He  spent  a  total  of  six  to  eight  days,  in  1919  and 
1920,  in  making  a  general  survey  and  investigation 
of  the  area  involved  in  this  suit,  and  the  results  thereof 
are  embodied  in  his  report  filed  as  Plaintiffs'  Exhibit 
86  in  this  case.     [Tr.  pp.  218  and  260.] 

He  found  the  land  poorly  prepared  for  the  economic 
application  of  water;  saw  less  than  five  acres  in  the 


—89— 

whole  valley  properly  prepared;  saw  only  one  man 
irrigating,  on  his  first  trip  in  August,  1919.  [Tr.  p. 
220.] 

He  saw  evidence  of  considerable  waste,  and  a  run- 
down condition  of  the  irrigating  system  generally; 
found  head  gates  and  boxes  leaky,  no  ditches  lined  with 
concrete,  nothing  but  wooden  structures.  [Tr.  pp. 
222-223.] 

lie  concluded  that  a  better  preparation  of  the  land 
and  the  use  of  a  proper  quantity  of  water  would  result 
in  better,  larger  and  more  certain  crops.     [Tr.  p.  226.] 

He  states  that,  in  addition  to  waste  through  surface 
run-off,  there  was  considerable  loss  by  deep  percola- 
tion ;  that  the  soil  on  the  upper  area  will  retain  two- 
thirds  of  an  inch  of  water,  and  on  the  lower  area 
one  inch  of  water,  per  foot  of  depth.     [Tr.  pp.  230-1.] 

He  stated  that  the  ideal  irrigation  would  have  no 
waste,  the  object  being  to  apply  just  enough  water, 
just  the  quantity  that  the  soil  would  absorb.  [Tr.  p. 
231.] 

He  found  certain  conditions,  namely,  too  much  water 
on  some  places  and  at  the  time  time  a  .shortage  of 
water  on  others,  due  to  lack  of  system  in  the  admin- 
istration of  the  general  supply.  He  found  twenty- 
eight  ditches  of  varying  lengths  diverting  water  from 
the  creek,  and  multii)licity  of  waste  resulting  from 
running  small  (quantities  of  water  in  gravel  channels, 
and  was  of  the  opinion  that  the  water  could  be  better 
handled  with  one  large  ditch  fnjm  which  laterals  ex- 
tended.    He  was  of  the  opinion  that  an  irrigation  .sys- 


—90— 

tern  might  be  developed  which  would  save  a  great  deal 
of  water.     [Tr.  pp.  233-4.] 

The  witness  concluded  that  27,400  acre  feet  was 
sufficient,  under  economical  use,  for  11,400  acres,  on 
the  basis  of  85%  irrigated.     [Tr.  p.  235.] 

It  would  appear  from  the  witness'  report  (Pltffs'  Ex. 
86,  p.  24)  that  the  figure  27,400  feet  is  gross,  and  in- 
cludes 8%  per  mile  for  channel  losses. 

He  admitted  that  in  concluding  that  waste  had  been 
committed  in  the  use  of  water  on  the  Bishop  Creek  area 
he  had  assumed  that  all  water  reaching  that  area  had 
come  directly  or  indirectly  from  that  stream,  and  that, 
until  called  to  his  attention  on  cross-examination,  he 
had  overlooked  and  taken  no  note  of  the  fact  that  the 
Bishop  Creek  and  Owens  River  canals  traversed  that 
area  for  several  miles  and  contributed  considerably 
to  the  underground  supply.     [Tr.  pp.  270-5.] 

tHe  admitted  that  the  fact  that  drainag-e  is  necessary 
does  not  conclusively  imply  that  waste  has  been  com- 
mitted, the  witness  saying,  "because  even  with  the  most 
careful  use  drainage  is  often  necessary  or  advisable." 
[Tr.  pp.  270-275.] 

He  admitted  that  the  methods  of  use  of  water  on 
the  Bishop  Creek  area  were  no  different  or  worse 
than  in  other  sections  of  the  country  which  had  not 
adopted  modern  and  scientific  practices  in  handling  the 
water  supply  for  irrigation.      [Tr.  p.  301.] 

Although  the  witness  had  testified  that  with  im- 
proved methods  of  handling  water,  such  as  had  been 
adopted  in  some  other  district,  larger  and  better  crops 


—91— 

could  be  raised  on  the  Bishop  area,  he  stated  on  cross- 
examination  [Tr.  p.  304] : 

"O.  Mr.  Means,  do  you  not  consider  that  the  crops 
that  grow  here,  whether  alfalfa  or  corn  or  grain  or 
stock — if  I  may  apply  the  term  'crop'  to  stock — or 
anything  else  they  grow  here,  is  up  to  the  standard 
compared  with  the  things  produced  in  other  regions? 

A.  Yes,  I  think  so.  I  think  this  is  the  best  corn 
region  in  California. 

Q.  And  there  is  no  better  alfalfa  grown  elsewhere 
than  here,  is  there? 

A.     Not  that  I  know  of. 

Q.  And  everything  they  produce  here  is  of  a  rather 
superior  kind,  is  it  not? 

A.     Yes. 

O.  So  that  in  quality  the  region  is  not  twenty  years 
behind  the  times? 

A.     No,  the  quality  is  good." 

Also   [Tr.  p.  311]: 

''Q.  Do  you  know  what  the  relative  or  comparative 
production  of  alfalfa  per  acre  here  is  considered  as 
against  other  regions? 

A.     No.     I  think  it  is  high  here,  though. 

O.  You  say  that  they  have  three  crops  a  season 
here  and  six  elsewhere? 

A.     Six  in  the  San  Joaquin  Valley. 

O.  How  do  they  compare  in  production  per  acre, 
tonnage? 

A.  I  would  think  this  country  would  i)r()duce  as 
much  with  three  cuttings  as  six  there." 

He  testified  that  from  the  ajipcarance  of  the  place 
of  defendant  Lloyd  Smith  he  was  a  good  farmer,  using 
short  lands  for  running  his  water;  that  he  took  i)ar- 
ticular  care  of  his  water,  watching  it  at  night  and  got 
over  his  land  quickly;  that  he  saw  ])ractically  no  evi- 


—92— 

dence  of  run-off.  His  land  could  have  been  better 
leveled.     [Tr.  p.  2686.] 

He,  in  support  of  the  claim  that  the  Bishop  Creek 
farmers  should  be  compelled  to  use  more  care  and 
economy  in  handling  their  water  supply,  submitted  the 
rules  and  regulations  of  the  Corcoran  Irrigation  Dis- 
trict, in  Kings  county.     [Tr.  p.  2694.] 

He  advocated  the  use  of  the  border  system  in  pre- 
paring the  land  for  irrigation.     [Tr.  p.  2696.] 

He  urged  reconstruction  of  the  general  irrigation 
system  on  Bishop  Creek,  including  the  installation  of 
the  check  and  border  features,  cutting  out  duplication 
of  ditches,  and  rearranging  the  balance.  [Tr.  })p. 
2710-11.] 

He  estimated  that  it  would  cost  $20  an  acre  to  put 
the  irrigating  system  in  perfect  condition  and  properly 
prepare  the  land,  and  for  the  most  economical  use  of 
water.      [Tr.  pp.  2710-12.] 

Regarding  Mr.  Means'  testimony,  we  wish  to  say, 
with  all  respect  to  him  as  a  man  and  an  engineer,  that 
hi?  opinion  as  an  expert  witness  on  conditions  in  the 
Bishop  Creek  area  is  not  a  sufficient,  proper  or  safe 
basis  for  determining  the  question  as  to  the  amount 
of  water  the  defendants  reasonably  are  entitled  to  for 
their  respective  parcels  of  land.  In  the  first  place, 
such  opinion  is  not  backed  or  supported  by  actual  ex- 
perience or  experiment  in  the  region  affected.  He 
devoted  some  six  or  eight  days  to  a  very  superficial 
investigation  of  that  area,  and  while  he  appeared  for 
people  who  had  been  conducting  farming  and  irrigation 


—93— 

operations  in  that  area  for  a  great  many  years,  neither 
he  nor  they  brought  forward  any  results  from  their 
experience  to  sustain  the  opinion  he  ofifered. 

His  views  on  the  use  of  water  in  the  Bishop  Creek 
area  are  plainly  theoretical  and  idealistic.  He  says 
there  is  great  waste  of  water  on  that  area  through 
deep  percolation  and  surface  run-ofif,  and  that  such 
waste  could  be  avoided  by  the  application,  under  proper 
conditions,  of  an  average  of  2.82  acre  feet  per  acre 
during  the  irrigating  season.  In  arriving  at  that 
figure,  he  multiplies  the  amount  of  water,  for  each 
irrigation,  which  the  soil  will  absorb  to  the  depth  of 
plant  root  penetration  in  the  different  parts  of  the 
area,  by  the  number  of  irrigations  for  the  season. 
This  gave  him  an  average  duty  of  2.3  acre  feet  per 
acre,  and,  adding  8%  per  mile  for  channel  losses,  he 
arrived  at  a  gross  or  head  duty  of  2.82  acre  feet  per 
acre. 

Furthermore,  such  method  takes  little  or  no  account 
of  the  heavy  gradients  and  varying  conditions  of  soil 
in  the  area  supplied  from  Bishop  Creek,  thus  subject- 
ing his  opinion  evidence  to  the  criticism  that  he  makes 
no  allowance  for  serious  practical  difficulties  in  hand- 
ling water  with  which  every  farmer  in  that  area  is 
familiar. 

Hence,  we  contend  that  Mr.  Means'  method  of  avoid- 
ing the  waste  of  water  charged  against  the  defendants, 
so  far  at  least  as  the  direct  application  of  the  water 
to  the  soil   is  concerned,   is  obviously   theoretical   and 


—94— 

does  not  afford  a  reasonable  and  i^racticable  standard 
for  judging  the  rights  of  the  parties  in  this  case. 

It  will  be  noted  that  the  only  waste  allowed  or  pro- 
vided for  by  Mr.  Means,  in  handling  the  water  under 
the  duty  he  assigns  to  the  Bishop  Creek  area,  is  the 
8%  per  mile  in  the  carrying  channels.  He  allows  for 
no  loss  in  the  laterals  or  distributing  ditches  of  the 
system.  This  means,  of  course,  that,  in  order  to  make 
his  duty  of  2.82  acre  feet  sufficient,  the  entire  system, 
with  the  exception  of  the  carrying  channels,  must  be 
reconstructed  out  of  impervious  material.  Besides 
this,  the  witness'  method  of  eliminating  or  limiting- 
waste  requires  a  precision  of  operation  which  would 
do  away  entirely  with  the  farmer  class  in  areas  de- 
pending on  artificial  irrigation,  and  substitute  for  them 
a  lot  of  scientists  with  all  kinds  of  delicately  adjusted 
instruments  and  appliances  for  measuring  and  dis- 
tributing water. 

While  the  Bishop  Creek  irrigation  system  has  been 
built  piece-meal,  its  various  parts,  as  constructed,  were 
related  to  the  natural  channels  of  the  creek  as  main  car- 
riers from  which  the  supply  is  distributed  through  the 
lateral  ditches.  Mr.  Means,  in  his  condemnation  of  the 
system  as  antiquated  and  excessively  wasteful,  urged 
that  there  are  too  manv  ditches  and  that,  as  a  measure 
of  economy,  these  should  be  consolidated.  It  should 
be  kept  in  mind  that  the  Bishop  Creek  area  is  compara- 
tively narrow  at  right  angles  to  the  grade  and,  there- 
fore, even  under  a  reconstructed  system,  it  undoubtedly 
would  be  found  that  the  best  location  for  trunk  lines 


—95- 

would  be  the  present  north  and  south  channels  and 
China  Slough.  The  laterals  serving  the  various  levels 
must  branch  from  the  main  carriers  in  herringbone 
fashion  to  reach  and  properly  serve  the  land,  and  this 
is  practically  the  layout  today.  It  is  true  that,  as  a 
result  of  independent  individual  activity  and  interest  in 
handling  the  Bishop  Creek  supply,  there  are  more 
ditches  than  would  be  necessary  under  an  incorporated 
or  consolidated  plan,  yet  such  rearrangement  could  rot 
be  depended  upon  to  effect  a  substantial  saving  of  water 
over  the  present  system.  Criticism  should  not  be  made 
of  short  laterals,  since  this  condition  is  imposed  by  the 
location  and  topography  of  the  general  area. 

An  important  and  material  condition  entirely  over- 
looked. The  witness  found  a  water-logged  condition 
in  parts  of  the  Bishop  Creek  area,  and  he  concluded 
that  it  was  caused  entirely  by  water  from  Bishop 
Creek,  and  that  the  defendants  were  largely  respon- 
sible for  such  condition  through  excessive  use  of  water 
from  that  stream.  He  admitted,  on  cross-examination, 
that  he  had  overlooked  the  Bishop  Creek  and  Owens 
River  canals  as  contributing  causes  to  such  condition, 
but  still  he  did  not  modify  his  conclusion. 

Regarding  those  two  canals,  it  should  be  pointed 
out  that  they  traverse  the  Bishop  Creek  area  for  a 
combined  distance  of  about  six  miles,  and  together 
they  carry,  during  the  irrigating  season,  an  average  of 
approximately  150  second  feet  of  water.  [Tr.  p.  2426.] 
These    canals    also    carry    considerable    (|uantities    of 


—96— 

water  during  the  rest  of  the  year.  The  Owens  River 
canal  is  located  in  the  upper  section  of  the  area,  where 
the  soil  is  composed  largely  of  very  coarse  and  porous 
material.  A  very  considerable  quantity  of  water  is 
taken  from  the  Bishop  Creek  canal  for  use  on  a  large 
acreage  within  such  area  lying  easterly  of  the  canal, 
and  also  on  adjacent  lands. 

It  will  readily  be  seen  that  the  presence  and  opera- 
tion of  these  two  large  canals  very  greatly  complicates 
the  situation  on  the  Bishop  Creek  area,  both  as  regards 
causation  of  water-logged  conditions  and  responsibility 
therefor,  and  the  matter  of  drainage.  The  witness 
made  no  allowance  for  this  complication.  He  looked 
at  the  lands  surcharged  with  water,  and  at  Bishop 
Creek,  and  at  the  defendants  sued  in  this  case  and 
said  that  they  were  responsible;  they  were  guilty  of 
waste  and  excessive  use  of  water  from  that  creek; 
their  supply  should  be  cut  down,  and  their  rights 
should  be  limited. 

Unjust  and  improper  comparisons.  The  witness 
compared  the  Bishop  area  with  lands  under  reclama- 
tion projects,  irrigation  districts,  and  incorporated 
canal  systems  in  other  parts  of  the  country.  The 
Bishop  area  is  composed  of  more  than  150  different 
independent  holdings  with  as  many  independent  water 
rights.  There  is  no  single  or  central  authority  invested 
with  control  over  supply  or  distribution.  It  is  true 
the  users,  without  legal  compulsion,  co-operate  in  par- 
celing  out   the    water,    but    there   is    no   incorporated 


—97— 

authority  to  operate,  build,  construct,  reconstruct  or 
improve  the  general  irrigation  system,  or  to  receive 
and  distribute  the  water,  or  to  require  the  installation 
of  checks,  borders,  impervious  laterals  or  ditches,  or 
other  so-called  improved  methods  of  irrigation.  De- 
fendants, however,  in  maintaining  and  exercising  sep- 
arate and  independent  rights  in  the  waters  of  Bishop 
Creek,  are  acting  under  the  law,  and  may  not  be  penal- 
ized for  waste  of  w^ater  unavoidably  incident  to  that 
situation. 

The  witness  show^ed  no  proper  or  sufficient  basis  for 
applying  to  the  Bishop  area  an  opinion  derived  from 
observations  on  the  Fresno  area.  The  latter  area  in- 
cludes thousands  and  tens  of  thousands  of  acres  irri- 
gated for  crops  entirely  unknown  to  the  Bishop  area. 
Around  Fresno  are  immense  vineyards,  requiring 
hardly  more  than  a  single  irrigation  a  year,  and  then 
there  are  very  large  areas  devoted  to  citrus  and  de- 
ciduous fruits.  The  Fresno  region  is  also  famous  for 
its  extensive  output  of  figs.  Water  demands  for  these 
crops  may  not  be  compared  with  those  of  the  Bishop 
area.  In  the  latter  area  the  alfalfa  crop,  a  large  con- 
sumer of  water,  predominates.  Besides,  owing  to  the 
fact  that  the  community  is  largely  devoted  to  stock 
raising  requiring  pasturage,  there  is  a  disprojmrtionate 
use  of  water  for  that  industry  compared  with  the 
Fresno  region. 

On  Bishop  Creek  the  land  falls  from  50  to  100  teet 
to  the  mile,  while  the  Fre.sno  area,  although  not  so  flat 


—98— 

as  Imperial  Valley,  Yuma  \^alley  or  Salt  River  Valley, 
has  but  slight  gradients. 

The  witness,  when  asked  for  the  basis  of  his  com- 
parison of  the  use  of  water  in  the  two  areas,  stated, 
"As  I  say,  I  was  using  general  figures,  the  total  use  as 
against  the  total  use  there."     [Tr.  p.  288.] 

It  is  clear  that  under  the  opinion  evidence  of  witness 
Means,  the  Bishop  area  is  unjustly  treated  through 
unfounded  comparisons  with  dissimilar  conditions  else- 
where. 

One  Smith,  a  good  farmer.  It  will  be  remembered 
what  the  witness  said  about  the  ranch  of  defendant 
Lloyd  Smith.  He  said  its  condition  indicated  that 
Smith  was  a  good  farmer,  using  short  lands  for  run- 
ning his  water;  that  he  took  particular  care  of  his 
water,  watching  it  at  night,  and  got  over  his  land 
quickly:  that  witness  saw  no  special  evidence  of  run-ofif 
on  his  place.  His  land  could  have  been  better  leveled. 
[Tr.  pp.  2686-8.] 

Smith,  thus  cited,  singled  out  and  praised  as  a  good 
farmer,  uses  seven  acre  feet  per  acre  of  water  on  his 
place  during  the  irrigating  season.     [Tr.  pp.  2657-8.] 

Mr.  Huber,  an  engineer  for  the  companies,  and 
irrigation  expert,  was  called  as  a  witness  by  his  em- 
ployers. He  really  had  a  very  difficult,  if  not  impos- 
sible, role  to  fill  in  undertaking  to  give  a  just  and 
unbiased  opinion  on  vital  issues  between  his  employers 
and  their  antagonists.  It  may  be  said  that  he  added 
little,   if  any,  to  the  testimony  of  his   associate,   Mr. 


—99— 

Means.  There  was,  of  course,  corroboration  here  and 
there  and  no  material  conflict  in  attitude  or  view  be- 
tween them,  as  sometimes  happens  where  witnesses  of 
the  expert  class  are  called  on  to  give  their  opinions 
under  oath.  Mr.  Means  boldly  stated  that,  in  his 
opinion,  a  duty  of  2.82  acre  feet  was  proper  and  rea- 
sonable for  the  Bishop  Creek  lands.  Mr.  Huber,  how- 
ever, w^as  somewhat  more  cautious  and  judicial  in  giv- 
ing his  figure  on  that  point.  He  said,  *Tt  was  from 
two  to  two  and  one-half,  or  possibly  two  and  seven- 
tenths  acre  feet  per  acre."     [Tr.  p.  318.] 

Mr.  Huber  gave  other  testimony,  which  we  will 
briefly  note  so  far  as  it  appears  material  for  the  present 
purpose. 

He  acted  as  consulting  engineer  on  different  occa- 
sions for  the  State  Bond  Commission,  in  cases  where 
the  securities  and  water  supplies  of  irrigation  districts 
were  under  investigation,  and  he  allowed  an  amount 
varying  with  the  different  districts,  according  to  the 
differences  in  soil,  from  two  acre  feet  up  as  high  as 
three  acre  feet.     [Tr.  pp.  313-14,  319.] 

He  took  a  multitude  of  i)hotographs  on  the  Bishop 
Creek  area  to  show  alleged  waste  of  water  and  primi- 
tive construction  of  ditches  and  other  works  on  de- 
fendants' irrigation  system.  This  work  evidently  re- 
quired the  witness  to  go  to  a  great  deal  of  trouble 
to  maintain  a  judicial  poise  as  an  exi)ert  witness  to 
aid  the  arbitrator  to  reach  a  just  conclusion  between 
the  witness'  employers  and  the  farmer  defendants. 
He  evidently  did  a  good  deal  of  running  up  and  down 


—100— 

the  roads  and  jumping-  fences  and  watching  the  farm- 
ers in  order  to  accumulate  evidence  which  seemed  to 
him  material  and  important.  He,  of  course,  gave  ex- 
haustive study  to  the  irrigation  system  for  the  Hillside 
lands  and  farming  operations  on  those  properties,  with 
a  result  that  is  quite  interesting.  Did  he  tell  us  about 
the  proper  duty  of  water  on  those  lands,  or  about  the 
crops  they  raise,  or  about  the  care  they  exercise  in 
handling  their  water  supply?  His  entire  testimony 
contatins  no  revelation  on  these  points,  but  we  do  find 
him  saying  that  a  certain  head-gate  on  the  Hillside 
system  is  a  better  structure  than  generally  found  on 
the  Bishop  Creek  system.     [Tr.  pp.  324-5.] 

We  wish  to  add,  in  line  with  what  we  have  urged 
regarding  the  testimony  of  Mr.  Means,  that  compari- 
sons made  by  Mr.  Huber  between  the  Bishop  area  and 
other  sections  such  as  irrigation  districts  and  other 
territory  under  incorporated  water  supplies,  with 
gradients,  soil  conditions,  and  crops  raised  substan- 
tially dissimilar  to  those  on  the  Bishop  area,  are  of 
practically  no  value  for  the  purpose  of  this  case. 

Defendants^  Case. 

Defendants  produced  three  witnesses  specifically  on 
the  question  of  the  proper  duty  of  water  on  the  Bishop 
Creek  area,  namely,  Messrs.  Clausen,  Shuey  and  Eaton, 
all  civil  engineers  by  profession  and  all  familiar  with  the 
farming  industrv  and  irrigation  in  Owens  Vallev.  Mr. 
Clausen,  as  an  engineer  in  the  employ  of  the  U.   S. 


—101— 

Reclamation  Service,  spent  most  of  the  years  1003  and 
1904  in  and  about  the  town  of  Bishop,  making  irriga- 
tion investigations  for  that  service,  and  he  has  visited 
that  section  every  year  since  and  kept  in  touch  with 
its  farming  and  irrigation  activities.  Messrs.  Shuey 
and  Eaton,  besides  being  civil  engineers  of  many  years' 
practice,  are  practical  farmers  of  long  experience  in 
/3wens  Valley  and  familiar  with  irrigation  under 
Bishop  Creek. 

Mr.  Clausen  gave  it  as  his  opinion  that  a  duty  of 
4.64  acre  feet  was  proper  and  reasonable  for  lands 
supplied  from  Bishop  Creek.  [Tr.  p.  2580.]  The  con- 
clusion of  Mr.  Clausen  vi^as  not  merely  his  opinion  as 
an  expert  engineer  familiar  with  irrigation  data  and 
experience  in  California  and  other  wastern  states,  but 
expressed  his  views  as  a  practical  engineer  especially 
familiar  with  irrigation  conditions  on  Bisho})  Creek 
and  other  parts  of  Owens  Valley  during  the  past  16 
or  17  years.  Moreover,  the  opinion  of  Mr.  Clausen 
as  to  the  proper  duty  of  water  on  lands  in  the  Bishop 
Creek  area  is  fully  supported  by  actual  facts  and  ex- 
perience in  that  area,  as  we  shall  now  proceed  to  show 
from  the  evidence  in  the  case. 

1.  The  Bishop  Creek  Water  Supply.  The  average 
flow  in  Bishop  Creek  for  the  irrigating  season,  to- wit, 
April,  May,  June,  July,  August  and  Sei)teml)er,  for 
the  sixteen  year  period,  1904  to  1919,  inclusive,  as 
shown  by  measurements  of  the  United  States  (Geolog- 
ical Surveys  and  by  plaintiit  companies,  placed  in  evi- 


—102- 


dence  by  stipulation  of  the  parties   (Pltffs'  Ex.   1-F), 
are  as  follows: 

April  1  to  15 53  second  feet 

April  16  to  30 83 

May  1  to  15 126 

May  16  to  31 180 

June 318 

July 326 

August   173 

September  1  to  15 92 

September  16  to  30 71 

Owing-  to  the  great  length  of  the  period  covered  by 
such  measurements,  the  averages  indicated  may  be 
said  to  apply  not  only  to  the  period  studied,  but  to  the 
entire  history  of  irrigation  on  the  creek. 

2.     The  Clausen  duty  of  water  is  fully  sustained. 

As  we  have  seen,  the  area  under  irrigation  from 
Bishop  Creek  in  1887  and  prior  thereto  was  8570.3 
acres  of  land,  now  owned  by  defendants  and  included 
in  the  large  area  covered  by  the  cross-bill,  and  the 
rights  under  which  such  water  was  so  used  have  ever 
since  been  appurtenant  to  such  lands.  We  have  also 
seen  that  the  low  flow  of  the  creek  during  the  months 
of  April  and  September  were  all  appropriated  and 
used  on  the  8,570.3  acres  of  land. 

Hence,  with  an  average  flow,  in  second  feet,  in  the 
stream  of  53  for  April  1  to  15;  S?i  for  ,April  16  to  30; 
92  for  September  1  to  15,  and  71  for  September  16  to 
30,  we  have  the  following  duty  of  water,  to-wit :    April 


—103— 

1  to  15,  .185  acre  feet;  April  16  to  30,  .290  acre  feet; 
September  1  to  15,  .322  acre  feet;  and  September  16  to 
30,  .250  acre  feet.  This  duty  for  the  periods  men- 
tioned is  substantially  the  same  as  that  assigned  by 
Mr.  Clausen  [Tr.  pp.  2543-4],  and  is  a  proper  duty, 
provided,  of  course,  that  the  water  was  necessarily 
used  on  the  irrigated  area,  and  this  question  will  be 
dealt  with  under  our  next  head. 

3.  Long-contirntcd  use  of  appropriated  water  raises 
the  presumption  of  necessary  and  beneficial  use.  Hav- 
ing, as  stated  above,  the  average  flow  of  water  in  the 
creek  for  the  months  of  April  and  September,  and  the 
application  of  those  flows  to  the  irrigated  area  specified, 
to-wit,  8,570.3  acres,  the  question  arises  whether  such 
use  corresponded  with  a  proper  and  reasonable  duty 
of  water.  The  presumption  is  that  it  did  and  such 
presumption  may  only  be  overcome  by  a  clear  and 
satisfactory  showing  that  the  appropriator  used  more 
water  than  was  reasonably  necessary. 

In  Campbell  v.  Ingraham,  37  Cal.  App.  728,  an  ac- 
tion involving  conflicting  claims  to  the  use  of  water, 
the  trial  court  had  found  that  a  certain  caiantity  of 
water  had  been  used  by  respondent  iov  many  years, 
without  objection  from  appellant,  for  the  irrigation  of 
hay  and  grain  and  for  garden  purposes.     'i1ie  Api)ellate 

Court  says : 

''From  such  use  it  would  be  proper  to  infer  thai 
it  was  necessary  in  order  to  produce  profitable 
crops.'" 


—104— 

Tn  California  Pastoral  etc.  Co.  v.  Madera  etc.  Irr. 

Co.,  167  Cal.  7S,  ^7,  it  is  said: 

"In  determining-  how  much  of  the  water  in 
fact  used  had  been  reasonably  necessary  for  the 
purpose  for  which  it  was  used,  we  believe  that 
a  court  should  be  liberal  with  the  appropriator  to 
the  extent  at  least  that  it  should  not  deprive  him 
of  any  portion  of  the  amount  of  water  that  he  had 
in  fact  used  for  the  period  necessary  to  gain  title 
by  prescription,  unless  it  is  clearly  and  satisfac- 
torily made  to  appear  that  he  has  used  more  than 
was  reasonably  necessary.  The  presumption  would 
appear  to  be  in  his  favor,  for  ordinarily  one  would 
not  take  the  pains  to  use  upon  any  land  more  than 
w^as  reasonablv  necessarv  under  all  the  circum- 
stances." 

The  doctrine  announced  in  the  last  case  is  applied 
by  the  District  Court  of  Appeal  in  Stinson  Canal  &  Irr. 
Co.  V.  Lemoore  Canal  &  Irr.  Co.,  188  Pac.  77.  In 
that  case  the  question  was  involved  as  to  the  quantity 
of  water  that  could  be  devoted  to  a  beneficial  use  on 
certain  lands.  The  appellants  were  dissatisfied  with 
the  decision  of  the  trial  court  as  to  the  number  of  feet 
of  water  to  which  they  were  entitled,  and  hence  took 
an  appeal.  As  was  recited  by  the  District  Court,  ex- 
perts were  called  by  respondents  to  testify  as  to  the 
reasonable  use  and  duty  of  the  water  on  the  area  in- 
volved. These  experts  made  detailed  examination  of 
the  water  systems  and  the  lands  thereunder,  and  testi- 
fied as  to  the  amount  of  water  required  by  orchards, 
vineyards  and  alfalfa  throughout  the  districts  under 
such  systems,  and  concluded  that  a  duty  of  water  of 
one  acre  foot  w^ould  be  sufficient.     One  of  the  experts 


—105— 

expressed  it  as  his  opinion  that  too  much  water  had 
been  used  on  the  lands  of  appellants,  thereby  causing 
*'the  country  to  be  water-logged."  According  to  the 
testimony  of  these  experts,  the  allowance  of  water 
made  by  the  trial  court  was  reasonable. 

These  experts  w^ere  met  by  witnesses,  including 
farmers,  ranch  superintendents,  ditch  tenders  and  irri- 
gators, who  testified  from  their  observations,  experi- 
ence and  knowledge  as  to  the  amount  of  water  re- 
quired on  the  lands  in  question.  The  testimony  of 
these  witnesses  strongly  tended  to  show  that  the  allow- 
ance of  water  by  the  trial  court,  on  the  basis  of  rea- 
sonable and  necessary  use,  was  insufficient. 

The  Appellate  Court,  speaking  of  the  testimony  of 

the   farmers   and  witnesses   who   relied   on   their  own 

observations,    experience    and    knowledge,    as    against 

the  opinion  evidence  of  the  experts,  said : 

"It  is  true  that  the  credibility  of  these  various 
witnesses  was  to  be  determined  by  the  exercise  of 
a  wise  discretion  on  the  part  of  the  trial  judge, 
and  it  is  not  for  us  to  say  that  their  statements 
should  have  been  accepted  at  their  full  face  value, 
but  it  is  at  least  apparent  that  this  class  of  testi- 
mony is  of  a  higher  quality  than  the  mere  opinion 
of  an  expert.  It  is  the  difference  between  ])ractice 
and  theory,  between  experience  anrl  mere  observa- 
tion or  examination." 

The  court  also  stated — and  to  this  statement  wc  ask 

particular  attention  because  of  its  bearing  on  tlie  i)()iiii 

which  is  under  immediate  discussion  here: 

"There  is  this,  al.so,  to  be  said:  That  it  is  not 
at  all  probable  that  a  number  of    farmers  would 


—106— 

use,  for  many  years,  for  the  purpose  of  irrigation, 
an  amount  of  water  that  would  destroy  or  impair 
the  value  of  their  land.  Of  course,  they  would 
not  willino-ly  do  so;  and  it  is  hard  to  believe  that 
in  these  days  of  intelligent  and  scientifically  di- 
rected agriculture,  these  men,  who  have  located 
and  built  up  a  thriving  community,  would  make 
such  a  grievous  mistake  as  to  cause  deliberately 
their  lands  to  become  water-logged  and  depre- 
ciated for  all  the  purposes  of  husbandry." 

And   again   the   Appellate   Court,    dealing  with   the 

same  question  in  that  case  as  that  which  we  are  now 

discussing,  said: 

"The  very  fact  that  they  used  for  so  many 
years  a  certain  quantity  of  water  is,  indeed,  very 
persuasive  evidence  that  such  quantity  was  actu- 
ally needed  for  such  purposes.  It  is  not  conclu- 
sive evidence  of  that  fact,  but  it  is  a  circumstance 
of  impressive  significance.  The  evidence  having 
shown,  therefore,  that  appellants  diverted  and 
used  for  manv  vears  a  lars^er  quantitv  of  water 
than  is  awarded  in  the  judgment,  the  strong 
probability  is  that  it  was  all  needed.  The  value 
of  such  use  as  evidence  of  the  need  for  the  water 
is  apparent,  and  we  may  add  that  it  is  so  recog- 
nized by  the  Supreme  Court  in  the  California 
Pastoral  etc.  Co.  Case,  supra,  wherein  it  is  said:" 

(At  this  point  the  court  quotes  the  paragraph  from 
the  California  Pastoral  Case,  which  we  have  set  forth 
above.) 

The  foregoing  decision  of  the  District  Court  of  Ap- 
peal enables  us  to  bring  to  the  attention  of  the  arbi- 
trator a  situation  strikinglv  similar  to  that  to  which 
this   controversy   relates,   and   since  that   decision,    on 


—107— 

points  peculiarly  applicable  to  the  present  case,  is  based 
upon  a  rule  laid  down  by  the  Supreme  Court  of  Cali- 
fornia, we  cite  it  as  an  authority  practically  controlling 
here. 

4.  April  duly,  as  dcicnuined  by  long  continued 
use,  requires  a  total  duty  sustaining  the  Clausen  figure. 
As  pointed  out  above,  long;  continued  use  proved  and 
established  as  proper  .185  acre  feet  as  the  duty  for 
April  1  to  15,  and  .290  acre  feet  as  the  duty  for  April 
16  to  30,  or  .475  acre  feet  as  the  duty  for  April.  Mr. 
Means  submitted  certain  percentages  for  distributing 
the  total  season's  duty  among  the  constituent  months. 
According  to  those  figures,  as  adapted  to  a  six  months 
irrigating  season  (see  Plaintififs'  Opening  Brief,  pp. 
128-9),  the  duty  for  April  is  ten  per  cent  of  the  total 
duty.  With,  then,  a  duty  of  .475  for  April,  as  deter- 
mined by  actual  long  continued  use,  we  have,  accord- 
ing to  the  Means  percentages,  a  total  duty  of  4.75  acre 
feet.  This  figure,  while  slightly  larger  than  that  sub- 
mitted by  Mr.  Clausen  for  the  total  duty,  sustains  the 
latter's  figure. 

5.  Reasonable  duty  is  not  only  dclcrniincd  by  long 
use,  but  is  enforced  by  condition  of  limited  zvater  sup- 
ply and  unlimited  irrigable  land.  Ciranted  that  the 
condition  cited  by  counsel,  on  the  Sacramento  River, 
where  the  water  supi)ly  is  abundant  and  the  land  is 
limited,  would  not  be  conducive  to  the  determination  of 
proper  water  duty,  the  very   fact   that   the   reverse  of 


—108- 

that  condition  exists  on  Bishop  Creek  is  conducive  to 
such  determination  on  the  area  adjacent  to  that  stream. 
In  other  words,  counsel's  illustration  reacts  on  them 
and  supports  our  contention.  We  think  it  would  be 
well  to  dwell  further  on  the  present  point. 

The  cross-bill  embraces  11,027  acres  of  irrigable  land 
lying  under  and  within  easy  reach  of  Bishop  Creek. 
The  evidence  shows  that  of  this  acreage,  there  are 
416  acres,  adjacent  to  lands  irrigated  from  Bishop 
Creek,  which  have  never  been  supplied  with  water 
from  any  source,  and  1,838  acres,  a  portion  of  which 
has  never  been  supplied  from  Bishop  Creek,  but  has 
obtained  its  supply  from  other  sources,  and  the  rest  is 
only  partially  supplied  from  Bishop  Creek  and  obtains 
the  remainder  from  other  sources.  (Appendix  A  to 
this  brief. )  And  this  condition  has  existed  ever  since 
1887,  or  prior  thereto. 

6.  Water  usage  in  July,  1920,  on  the  Bislio/^ 
Creek  area  also  sustains  the  Clausen  figure  for  proper 
duty.  During  the  month  of  July,  1920,  the  average 
daily  flow  of  Bishop  Creek  available  to  the  defendants 
was  106.1  second  feet.  (Defs.*  Ex.  F. )  This  supply, 
as  shown  by  the  testimony  of  Mr.  Clausen  [Tr.  pp. 
2537-40],  was  applied  to  7.028  acres,  100%  irrigated, 
including  the  equivalent  of  450  acres  lying  below  the 
Bishop  Creek  canal.  This  gave  a  water  duty  of  .936 
acre  feet  per  acre. 

This  7.028  acres  is  gross  area,  no  deduction  having 
been  made  for  standard  exceptions  such  as  buildings, 


—109— 

corrals,  roads,  etc..  for  the  reason  that  such  excep- 
tions are  more  than  offset  by  losses  through  seepage 
and  evaporation  as  affecting  the  supply  of  106.1  second 
feet  as  carried  through  the  different  ditches  to  the 
points  of  use. 

There  was  no  evidence  of  any  unreasonable  waste 
of  water  in  the  application  of  the  supply  for  July,  1920, 
to  the  area  irrigated.  As  we  pointed  out  in  an  earlier 
part  of  this  brief,  apparently  excessive  use  of  water 
under  the  rotation  system  on  the  different  ranches  did 
not  necessarily  involve  any  actual  waste,  for  the  reason 
that  the  same  water  was  used  over  and  over  again  as 
it  descended  from  the  upper  to  the  lower  ranches,  and 
when  the  quantity  of  water  consumed  on  the  irrigated 
area,  taken  as  a  whole,  was  considered,  there  was  no 
substantial  waste.  A  short  supply  was  calculated  to 
produce  economy  of  use. 

The  evidence  in  the  case  shows  thai  the  water  de- 
mands are  substantially  uniform  during  the  months  of 
June,  July  and  August,  and  therefore,  on  the  basis  of 
a  water  duty  of  .936  acre  feet  for  July  on  the  area  here 
involved,  we  would  have  a  net  duty  for  the  thirty 
days  of  June  of  .906  acre  feet,  and  for  the  thirty-one 
days  of  August,  .936  acre  feet. 

As  pointed  out  by  counsel  at  pages  128-9  of  their 
brief,  Messrs.  Means  and  Clausen  agree  as  to  the  per- 
centages of  total  season's  duty  which  should  be  as- 
signed to  April  and  July.  We  have  shown  that  on 
this  basis  the  April  duty,  as  fixed  and  determined  by 
long  continued  use,  called   for  a  total  duty  slightly  in 


—no- 
excess  of  that  assigned  by  Mr.  Clausen.  That  fact  is 
in  our  favor,  as  Mr.  Clausen  was  imposing  an  even 
higher  duty  than  actual  experience  indicated  was 
proper.  Application  of  the  supply  available  for  de- 
fendants' lands  for  July,  1920,  under  conditions  favor- 
able to  economy  of  use,  gave  a  duty  of  .936  for  that 
month,  and  this  duty,  on  percentages  as  to  which 
Messrs.  Means  and  Clausen  also  agree,  calls  for  a 
total  season's  duty  of  4.64,  and  that  is  substantially 
Mr.  Clausen's  figure  for  the  proper  duty  of  water  from 
Bishop  Creek  for  defendants'  lands. 

Mr.  Clausen's  figure  as  to  the  proper  duty  of 
water  on  Bishop  Creek  lands  is,  therefore,  not  a  mere 
expression  of  opinion  but  is  a  figure  checked,  deter- 
mined and  sustained  by  the  results  of  the  application 
of  water  under  conditions  imposing  care  and  economy 
of  use. 

For  convenience  in  the  examination  of  this  brief, 
we  insert  at  this  point  the  following  tabulation  based 
upon  the  foregoing  study,  showing  the  duty  of  water, 
second  feet  daily  mean  flow  required  and  total  monthly 
requirements,  for  irrigating  8,570.3  acres  of  the  lands 
of  the  defendants  from  Bishop  Creek: 

Ac.  Ft.         Dailv  Mean 
Period  per  Ac.     Flow*in  Sec.  Ft.    Ac.  Ft. 

April  1-15  .185  53  1590 

April  16-30  .290  83  2490 

May  1-15  .371  106  3180 

May  16-31  .444  119  3808 

June  .906  129  7740 


—Ill— 


.  uly 

.936 

129 

8021 

August 

.936 

129 

8021 

Sept.  1-15 

.322 

92 

2760 

Sept.  16-30 

.250 

71 

2142 

Totals  4.64  39752 

7.  Testimony  of  Shiiey,  Eaton  and  iraftcrson. 
George  R.  Shuey,  civil  engineer  and  practical  farmer, 
with  long  experience  in  Owens  Valley,  made  an  ex- 
amination and  survey  of  the  Bishop  Creek  area  for 
the  purpose  of  classifying  the  soils  and  determining 
the  water  requirements  of  the  lands  in  the  different 
zones  of  the  area.  A  map  prepared  by  him,  showing 
the  zones  established  by  him  for  such  purpose,  which 
were  three  in  number,  was  introduced  in  evidence  as 
Defendants'  Exhibit  "R."  [Tr.  p.  2591.]  According 
to  his  testimony,  zone  1,  embracing  lands  with  coarse, 
granitic  soils  in  the  upper  section  of  the  area,  contains 
15%;  zone  2,  embracing  lands  with  medium  soils, 
contains  35%;  and  zone  3,  embracing  lands  with  the 
denser  soils,  contains  50%  of  the  total  area.  [Tr.  pp. 
2590-3.] 

Mr.  Shuey,  basing  his  conclusions  on  his  experience 
and  tests  in  other  parts  of  the  valley,  stated  that  the 
water  requirements  of  lands  in  zone  1  were  7  acre 
feet;  of  lands  in  zone  2,  S.S  acre  feet;  of  lands  in  zone 
3,  3  to  3.5  acre  feet.  According  to  the  respective  acre- 
ages in  the  three  zones,  the  water  requirements  uf  the 
area  as  whole  would,  under  his  figures,  be  from  4.55 
acre  feet  to  4.72  acre  feet  per  acre.     [Tr.  p.  25')4. 1 


—112— 

The  witness  had  examined  various  ranches  to  de- 
termine the  proportionate  extent  of  the  usual  excep- 
tions from  the  irrigated  area,  such  as  roads,  corrals, 
house  lots,  sloughs,  ditches,  fence  lines  and  creek  beds, 
and  he  found  that  they  ran  from  3  to  8  per  cent. 
[Tr.  p.  2598.]  Regarding  the  testimony  of  Mr.  Means, 
that  to  put  the  Bishop  Creek  system  in  first  class  con- 
dition and  prepare  the  land  for  irrigation  under  mod- 
ern methods,  would  cost  not  to  exceed  $20  per  acre, 
the  witness  declare  that  it  would  cost  at  least  twice 
that  sum.     [Tr.  p.  2602.] 

The  witness  approved  the  method,  employed  on  the 
Bishop  Creek  area,  of  using  large  heads  of  water  and 
getting  over  the  lands  quickly.  He  testified  [Tr.  pp. 
2614-15]: 

"Q.  I  want  to  ,get  you  back  to  a  point  you  testified 
to  where  vour  attention  was  called  to  the  fact  that  in 
a  certain  area  eight  or  nine  acre  feet  were  employed 
on  the  lands  in  that  certain  area.  You  were  asked 
whether  or  not  that  was  excessive  use,  and  you  said 
yes.  Would  you  say  that,  having  in  mind  the  fact 
that  the  run-off  as  a  rule  is  used  and  re-used  by  the 
farms  in  the  neighborhood? 

A.  No,  it  would  not  be  excessive  use  as  affecting 
the  whole  district,  but  as  affecting  that  individual 
property  it  would  be  excessive  use. 

O.  If  the  run-off  went  to  waste,  and  the  use  could 
be  efficiently  confined  to  the  farm,  it  would  be  a  dif- 
ferent situation? 

A.     Yes,  sir. 

O.  But  where  the  farms  are  handled  as  a  part  of 
one  general  system,  and  the  run-off  is  used  and  re- 
used, or  restored  to  the  creek  and  taken  out  below, 


—US- 
then  the  ussLge  may  be  high,  and  yet  consistent  with 
reasonably  efficient  use? 
A.     Yes." 

We  feel  that  Mr.  Shuey's  professional  attainments 
and  long  practical  experience  in  farming  and  irrigation 
in  Owens  Valley,  give  special  weight  and  reliability 
to  his  testimony. 

Mr.  Eaton,  engineer  and  practical  irrigator  in  the 
Big  Pine  district,  gave  it  as  his  opinion  that  5  acre 
feet  was  a  proper  duty  of  water  in  the  Bishop  Creek 
area  considered  as  a  whole.  He  assigned  10  acre  feet 
to  the  upper  section,  5  acre  feet  to  the  middle  section, 
and  3.5  acre  feet  to  the  lower  section.  He  based  his 
figures  on  his  personal  experience  and  experiments 
in  the  Big  Pine  region,  lying  fifteen  miles  south  of 
Bishop  Creek,  where,  as  testified  by  him,  there  are 
substantially  the  same  character  and  classes  of  soils 
as  under  Bishop  Creek.  [Tr.  pp.  2653-7.]  The  wit- 
ness assigned  10  per  cent  to  the  usual  exceptions,  in- 
cluding swamps,  from  the  irrigated  area  under  Bishop 
Creek.     [Tr.  p.  2658.] 

George  Watterson,  who  for  many  years  has  been 
secretary  of  the  Bishop  Creek  Ditch  Company,  and 
a  practical  farmer  on  lands  owned  by  him  near  the 
town  of  Bishop,  and  familiar  with  irrigation  in  the 
Bishop  region,  testified  that  he  agreed  with  witness 
Shuey  as  regards  the  duty  or  reasonable  use  ol"  water 
on  the  Bishop  Creek  area,  except  that  he  felt  that  zone 
No.  1,  containing  coarse  and  porous  granitic  soils, 
should  also  include  a  small  portion  of  zone  2.     [Tr.  p. 


—114— 

2629.]  Regarding-  shorter  runs  for  irrigation,  the 
witness  testified  that  in  some  cases  that  method  would 
apply  and  in  some  cases  it  would  not  apply,  because 
of  extreme  roughness  of  the  surface  of  the  ground 
and  the  fact  that  the  soils  are  shallow  and  could  not 
be  redistributed  without  destroying  their  fertility.  [Tr. 
p.  2630.]  He  examined  three  ranches  to  test  the  ques- 
tion of  the  proper  percentage  to  be  allowed  for  places 
excluded  from  irrigation.  All  three  ranches  were  at 
road  corners,  and  contained  40,  80  and  160  acres  re- 
spectively, and  he  found  the  percentages  for  these 
were  8,  3.5  and  7.     [Tr.  p.  2585.] 

The  testimony  of  witnesses  Shuey,  Eaton  and  Wat- 
terson  supports  the  conclusion  of  Mr.  Clausen. 

(8)  Lee  and  Clausen  experiments.  Mr.  Charles 
H.  Lee,  engineer,  now  president  of  the  State  Water 
Commission,  made  certain  tests  in  1909  to  determine 
the  duty  of  water  on  various  ranches  under  Oak 
Creek,  near  Independence,  California,  and  the  results 
of  these  studies  were  published  in  Water  Supply  Paper 
No.  294  of  the  United  States  Geological  Survey,  and 
introduced  in  evidence  here.     [Tr.  pp.  2552-6.] 

These  ranches  are  in  an  area  possessing  substan- 
tially similar  soil  characteristics  to  those  of  the  Bishop 
area,  that  is,  the  soils  range  from  very  coarse  and 
porous  materials  in  the  higher  stretches  to  finer  and 
closer  materials  at  the  lower  levels.  Ranch  No.  1, 
containing  109  acres,  is  high,  well  drained,  with  porous 
soil.     George  Watterson  refers  to  this  as  the  Schabbel 


—US- 
ranch,  and  says  it  corresponds  to  lands  in  zone  1  under 
the  Shuey  classification  of  the  Bishop  area.  [Tr.  p. 
2632.]  Mr.  Lee,  in  his  report,  says,  regarding  this 
place,  that  the  water  is  used  economically,  and  7.22 
acre  feet  is  the  least  amount  which  would  mature 
crops. 

Some  of  the  ranches  embraced  in  Mr.  Lee's  studies 
used  a  much  greater  quantity  of  water  than  ranch 
No.  L  but  the  use  did  not  appear  to  him  to  be  eco- 
nomical, and  some  ranches,  corresponding  more  or 
less  closely  with  lands  in  the  lower  sections  in  the 
Bishop  area,  used  2.34  acre  feet  and  2.8  acre  feet. 

The  water  duties  determined  by  Mr.  Lee  were  net, 
that  is,  they  were  based  on  measurements  made  at  the 
point  of  entrance  to  the  ranches. 

Mr.  Lee,  in  his  report,  refers  to  the  experiments 
made  by  Mr.  J.  C.  Clausen  in  1904  for  the  Reclama- 
tion Service,  on  two  ranches  near  Bishop,  with  the 
result  of  7.11  acre  feet  on  one,  and  9.17  acre  feet  on 
the  other. 

The  results  of  the  foregoing  studies  and  experi- 
ments of  Mr.  Lee  and  Mr.  Clausen  support  the  claims 
of  the  defendants  in  this  case. 


—116- 


VII. 

The   Irrigators    From   China    Slough   Are    Entitled 
to  Relief  in  This  Case. 

The  following  lands  involved  in  this  case  are  irri- 
gated, in  whole  or  in  part,  from  China  vSlough: 
Cashbaugh  Estate 70  acres.      [Tr.  p.  1918.] 


Mayhew 50 

Newlan 50 

Sullivan 60 

.Summers   80 

Tweedy    160 

Clarke,  George  A 12 

Clarke,  Mary   60 

Gibson    3 


1706.] 
2396.] 
1903.] 
1853.] 
1776.] 
564.] 
564.  ] 
1632.] 


Total 547  acres 


The  following  lands,  embraced  in  the  foregoing", 
also  obtain  water  from  another  source,  namely,  the 
Bishop  Creek  canal: 

Newlan 25  acres 

Summers ^7 

Tweedy    50     *' 


Total 112  acres 

leaving  a   balance   of  435   acres   irrigated  exclusively 
from  China  Slough. 

We  submit  that,  if  the  evidence  shows  that  these 
lands  are  irrigated  from  a  source  embraced  in  the 
general    Bishop    Creek    supply,    then,    the    defendants 


—117— 

owning  these  lands  are  entitled  to  a  decree  quieting 
their  title  and  granting  them  injunctive  relief  as 
against  plaintiffs. 

Bishop   Creek   falls  within  the   following  language, 

employed  by  our  State  Supreme  Court  in  McClintock 

V.  Hudson,  141  Cal.  275,  to-wit: 

'*The  streams  of  this  state  and  their  course 
through  the  lower  levels,  after  they  have  left  the 
precipitous  sides  of  the  mountains  on  which  they 
originate,  do  not  ordinarily  flow  over  beds  of  rock 
or  other  material  impervious  to  water.  The  usual 
condition  is,  that  such  streams  flow  in  a  shallow 
channel,  over  and  through  a  mass  of  sand  and 
gravel  saturated  with  water  from  bed  rock  up  to 
or  slightly  above  the  level  of  the  surface  of  the 
stream." 

China  Slough  has  been  a  familiar  feature  of  the 
Bishop  Creek  drainage  area  from  the  days  of  the 
earliest  settlements  in  that  region.  While  its  outlines, 
location  and  general  conditions  have  been  aft"ected  more 
or  less  by  farming  operations  and  the  improvement  of 
property  in  its  vicinity,  yet  what  is  left  of  it  still  indi- 
cates its  connection  with  the  general  body  of  water 
issuing  out  of  Bishop  Creek  Canyon  ,and  flowing  thence 
partly  in  surface  channels  and  partly  underground 
through  the  porous  materials  throughout  the  delta  cone 
created  by  the  stream.  The  slough,  as  we  know  it  to- 
day, unquestionably  derives  a  considerable  part  of  its 
waters  through  drainage  resulting  from  irrigation  on 
lands  in  the  neighborhood,  and  yet  it  also  derives  a 
substantial  part  of  its  supply  directly  from  the  flow 
of  the  creek. 


—118— 

The  slough  is  depicted  on  United  States  Geological 
Survey  map,  Bishop  quadrangle,  as  heading  in  the 
vicinity  of  the  town  of  Bishop,  and  running  thence  in 
a  general  southeasterly  direction  for  a  distance  of 
about  six  miles,  to  and  connecting  with  Owens  River. 
Rising  in  the  creek  delta  it  runs  and  swings  in  sub- 
stantial parallel  with  the  surface  forces  of  that  stream. 
That  these  forks  and  the  slough  come  from  and  are 
part  of  the  same  supply,  is  plainly  indicated  on  the 
ground. 

In  the  McClintock  case  the  question  was  involved 
whether  percolating  water  obtained  by  means  of  a 
tunnel  constructed  in  the  land  near  the  surface  chan- 
nel of  the  stream,  w^as  part  of  the  underflow  of  the 
stream  known  as  "San  Jose  Creek."    The  court  says: 

"The  topography  of  the  country  and  the  situa- 
tion of  San  Jose  Creek,  with  the  character  of  its 
bed,  are  alone  almost  sufficient  to  prove  this  fact." 

So  here,  with  reference  to  China  Slough,  the  topog- 
raphy of  the  country  and  the  situation  of  Bishop  Creek, 
with  the  character  of  its  bed,  are  alone  almost  suffi- 
cient to  prove  that  the  natural  flow  of  the  slough,  sur- 
face and  underground,  is  in  contact  with  and  part  of 
the  general  flow  of  the  creek.  Such  natural  conditions 
were  supplemented  by  other  competent  evidence. 

Mr.  Eaton  showed  that  he  had  had  considerable  ex- 
perience as  an  engineer  in  regard  to  underground 
waters,  and  he  gave  it  as  his  opinion,  based  on  ob- 
servation of  surface  conditions,  that  the  water  supply 


—119— 

manifesting-  itself  in  what  is  known  as  ''China  Slough" 

was  in  contact  with  the  waters  of  the  creek,  and  came 

in  part  through  percolation  direct  from  the  creek  and 

in  part   from  drainage  or  run-off  from  irrigation  in 

the  vicinity.     [Tr.  pp.  2658-67.]     He  also  testified  that 

if  Bishop  Creek  were  eliminated,  and  there  were  no 

artificial   accretions  to  the   slough   supply,   the   slough 

would   disappear  except  as   affected  at  its   lower  end 

by  the  natural  flow  of  Owens  River.     [Tr.  pp.  2666-7.] 

Mr.  Huber  testified,  in  reference  to  China  Slough: 

"This  is  a  delta  cone  which  probably  had  under- 
ground water  in  it  before  any  artificial  means  of  con- 
trolling the  stream  were  here,  and  China  Slough  being 
a  low  place;  probably  some  cienegas."     [Tr.  p.  2748.] 

Also : 

'*0.  You  say  the  creek  might  in  time  of  high  water 
throw  some  of  its  water  towards  the  China  Slough 
area,  and  some  of  it  get  into  the  China  Slough? 

A.  Yes.  I  wish  to  explain  that  any  delta  cone  like 
this  is  built  up  to  a  considerable  extent  by  such  floods." 
[Tr.  pp.  2749-50.] 

He  says  further: 

'Tt  is  a  low  spot  in  the  region,  and  it  is  where  floods 
such  as  would  overflow  the  banks  of  Bishop  Creek 
might  send  a  part  of  their  waters."     [Tr.  p.  2750.] 

"Q.  Is  it  your  judgment  as  an  engineer  that  before 
artificial  conditions  affected  the  area,  there  would  be 
drainage  by  percolation  from  the  creek  through  that 
region,  manifesting  itself  on  the  ground  where  we  now 
find  China  Slough? 

A.  Yes.  The  creek  probably  sup])lied  underground 
water  to  the  whole  delta  cone,  and  that  being  a  low 
place   it   probably    comes    in    from    various    sides,    the 


—120— 

property  about  there  is  a  swamp,  or  cienegas."     [Tr. 
pp.  2748-9.] 

We  therefore  submit: 

1.  That  China  Slough,  as  to  its  natural  supply, 
should  be  considered  and  treated  as  part  of  the  sub- 
surface flow  of  Bishop  Creek,  and  that  the  rights  of 
the  defendants  whose  lands  have  been  supplied  with 
water  therefrom  should  be  determined  by  the  same 
legal  principles  as  apply  to  the  lands  of  defendants 
which  are  supplied  from  the  surface  stream. 

2.  That  even  if  the  waters  naturally  supplying 
China  Slough  are  to  be  regarded  as  percolating  waters 
moving  outside  of  the  channel  of  the  creek,  still  the 
source  of  those  waters  is  the  flow  of  the  creek,  and 
the  storage  of  plaintiffs,  having  the  efifect  of  diverting 
and  impounding  a  large  part  of  the  waters  of  the  creek 
during  the  irrigating  season,  and  thereby  reducing  the 
supplies  depending  on  the  creek  during  that  period, 
involved  a  trespass  on  the  rights  of  defendants  whose 
lands  are  irrigated  from  China  Slough,  and  those  de- 
fendants are  entitled  to  relief  against  the  wrongful 
acts  of  plaintiffs. 

The  court,  in  Cohen  v.   La  Canada  Land  etc.   Co., 

142  Cal.  437,  439,  says: 

"But  since  the  trial  of  the  cause  in  the  court 
below,  it  has  been  definitely  settled  by  this  court 
in  Katz  v.  W^alkinshaw,  141  Cal.  116,  and  subse- 
quent cases,  that  the  question  w^hether  one  can 
maintain  an  action  for  deprivation  of  the  use  of 


—121— 

the  water  by  the  act  of  another  does  not  depend 
upon  the  fact  that  the  deprivation  was  caused  by 
the  tapping-  or  intercepting  of  a  known  stream 
running  in  a  defined  channel,  either  on  the  surface 
or  underground.  In  such  an  action  it  is  sufficient 
for  the  plaintifif  to  show  that  wrongful  acts  of 
the  defendant  complained  of  did  actually  deprive 
plaintifif  of  water  to  the  use  of  which  he  was 
legally  entitled;  and  if  these  acts  consisted  of 
subsurface  excavations  it  is  not  necessary  for  the 
plaintifif  to  show  that  a  well-defined  subterranean 
stream  had  been  intercepted,  or  to  show  the  par- 
ticular subterranean  conditions  which  were  dis- 
turbed, provided  it  clearly  appears  that  the  acts 
of  the  defendant  caused  the  destruction  or  dimi- 
nution.'' 

Katz  V.  Walkinshaw.  141  Cal.  116,  established  the 
principle  that  water  may  not  be  diverted  from  land 
lying  in  a  belt  which  has  become  saturated  with  perco- 
lating water,  for  exterior  or  distant  use,  to  the  injury 
of  any  owner  of  land  in  such  belt.  The  acts  of  plain- 
tififs,  in  impounding  the  waters  of  Bishop  Creek,  from 
which  the  natural  supply  of  China  Slough  emanates,  so 
as  to  substantially  curtail  and  reduce  the  supply  of 
water  in  such  slough  for  the  lands  irrigated  therefrom, 
are  as  clearly  within  the  principle  laid  down  in  the 
Katz  case  as  they  would  be  if  the  supply  thus  withheld 
from  the  irrigators  were  conveyed  away  from  the 
Bishop  Creek  area  to  distant  ])oints  of  use. 


—122— 

VIII. 
Waste. 

Counsel  for  plaintiffs  devote  47  pages  of  their  brief 
to  the  discussion  of  waste.  Many  discrepancies  of 
statement  are  found  in  this  part  of  their  argument. 
Some  of  these  we  will  note.  They  say,  that  the  testi- 
mony shows  that  the  season's  usage  of  water  on  the 
place  of  J.  C.  Kewley  is  28  acre  feet,  whereas  14  acre 
feet  is  the  correct  figure;  on  the  place  of  C.  M.  Dixon 
is  5.9  acre  feet,  V\^hereas  3.9  acre  feet  is  the  correct 
figure;  on  the  place  of  J.  M.  Brockman  is  7.4  acre  feet, 
whereas  4.2  acre  feet  is  the  correct  figure;  on  the 
place  of  W.  C.  Bulpitt  is  3.1  acre  feet,  w^hereas  2  acre 
feet  is  the  correct  figure ;  on  the  place  of  W.  P.  Yaney 
is  11.4  acre  feet,  whereas  6.9  acre  feet  is  the  correct 
figure;  and  on  the  place  of  J.  G.  Henderson  (Parcel  2) 
is  6.9  acre  feet,  whereas  2.3  acre  feet  is  the  correct 
figure. 

Many  other  misstatements  might  be  cited  from  this 
part  of  counsel's  brief,  but  as  a  rule  they  are  involved 
in  broad,  general  and  unproven  assertions  which  ren- 
der a  detailed  reply  impracticable  as  well  as  inadvis- 
able, and  we  must  leave  them  to  be  observed  and  noted 
by  the  arbitrator  in  his  examination  of  the  argument 
of  counsel. 

However,  counsel  insist  on  certain  propositions, 
which  we  shall  attempt  to  deal  with  separately  and 
under  definite  heads. 


—123— 

(a)  CounseVs  assertion  that  the  Bishop  Creek  irri- 
gation system  is  operated  on  the  principle  of  ''every 
man  for  himself/'  is  unjust  and  unfounded.  The  evi- 
dence showed  that  the  water  supply  is  distributed  and 
used  by  the  farmers,  acting  co-operatively  and  with 
the  assistance  of  the  zanjero,  under  the  rotation 
method;  that  the  farmers  take  turns;  that  they  give 
notice  in  advance  of  their  requirements  and  wait  until 
prior  notices  are  complied  with ;  that  in  times  of  short- 
age they  submit  to  regulations  denying  water  for  pas- 
turage in  order  that  other  and  more  perishable  crops 
may  be  irrigated;  that,  acting  on  the  principle  of  each 
man  in  turn,  they  allow  water  to  pass  their  places  in 
the  creek  or  in  ditches  for  the  use  of  others,  even  at 
times  when  they  badly  need  it  themselves.  The  arbi- 
trator will  remember  the  implication  of  criticism  made 
by  counsel  for  plaintiffs  in  repeated  questions  where  it 
appeared  that  farmers,  though  needing  water,  instead 
of  acting  "each  for  himself,"  allowed  a  supply  to  pass 
their  farms  and  go  to  other  places  to  which  it  had 
been  assigned  by  the  zanjero  under  the  rotation  sys- 
whole.  In  the  distribution  and  use  of  this  supply,  the 
tern.  In  short,  it  was  the  attitude  of  counsel  at  the 
hearing  to  rather  urge  that  the  failure  of  the  farmers 
to  grab  the  water  when  needing  it,  and  disregard  the 
necessity  of  others,  was  a  species  of  remissness  on  their 
part  possibly  affecting  their  rights. 

(bj  Counsel's  assertion  that  more  thaii  nine-tenths 
of  run-oft  is  entirely  wasted  and  lost,  is  obviously  un- 


—124— 

founded.  They  cite  from  the  record  no  figures  based 
on  tests,  experiments  or  experience  to  prove  such  as- 
sertions. Their  cHent,  the  Hillside  Company,  has  been 
operating-  an  irrigated  ranch  in  the  Bishop  region  for 
thirty  years,  but  they  produced  no  data  from  the 
lands  of  that  company,  or  elsewhere  in  Owens  Valley, 
to  justify  their  claim  regarding  losses  in  run-off. 

As  we  have  heretofore  set  out.  the  available  supply 
from  Bishop  Creek  for  the  irrigation  of  defendants' 
land  in  July,  1920,  was  106.1  second  feet,  and  7,028 
acres  were  irrigated  with  this  supply. 

The  entire  supply  was  consumed  on  that  area,  and 
there  was  no  run-off  from  such  area  considered  as  a 
whole.  In  the  distribution  and  use  of  this  supply,  the 
amount  applied  to  individual  ranches  aggregated  180 
second  feet,  thus  implying  a  run-oft"  of  about  74  second 
feet.  Counsel  say  that  not  one-tenth  of  this  run-off 
could  have  advantageously  been  used  even  if  an  effort 
had  been  made  to  do  so.  (Pltft"s'  Op.  Brief,  p.  S?>.) 
This  means,  according  to  their  claim,  that  more  than 
67  second  feet  was  absolutely  wasted  and  lost.  This 
is  a  wild  and  reckness  assertion,  without  justification 
in  the  record.  It  assumes,  as  appears  from  the  argu- 
ment of  counsel  (Plffs'  Op.  Brief,  pp.  53-4)  that  the 
farmers  on  the  lower  ranches  do  not  need  and  cannot 
use  the  run-off  from  the  places  above  because  of  diver- 
sified agriculture,  and  it  therefore,  with  the  exception 
of  the  small  amount  of  less  than  one-tenth,  is  lost  for 
any  purpose  of  irrigation. 


—125— 

Witness  Shepard,  the  zanjero,  described  the  manner 
of  handling-  run-off  in  the  seasons  1919  and  1920.  He 
testified  as  follows   [Tr.  pp.  2200-1]: 

"O.  Did  you  give  any  attention  to  the  matter  of 
run-off  water  in  1919  and  1920,  with  regard  to  making 
it  go  around? 

A.  Yes,  sir,  I  paid  particular  attention  to  handling 
the  run-off  water,  and  putting  it  on  the  ranches  below. 

O.  How  would  you  go  about  that?  How  would 
you  accomplish  anything  in  that  regard? 

A.  Well,  a  good  many  of  the  ranches,  except  in  a 
few  cases,  have  waste  ditches  which  either  lead  bark 
into  the  creek  or  onto  the  other  man's  ranch.  And  I 
would  notify  them  that  there  was  run-off  water.  The 
rule  on  that  is  that  if  he  didn't  finish  with  the  run-off 
water,  I  would  give  him  a  little  out  of  the  creek,  re- 
gardless of  his  turn.  There  is  a  big  saving  of  water 
by  doing  that.'' 

And  again,  on  cross-examination   [Tr.  pp.  2208-9] : 

"Q.  Did  you  do  anything  in  1919  (jr  1920  to  im- 
prove the  w^aste  water  situation? 

A.     Yes,  sir,  I  did. 

O.     What  did  you  do? 

A.  I  picked  it  all  up ;  made  them  clean  their  run-off 
ditches  out,  so  T  could  use  it  on  the  ranches  below,  and 
watched  them  very  close  to  see  that  they  did  not  run 
too  much  water. 

O.  You  let  them  continue  to  run  the  water  down 
through  the  waste  ditches,  and  then  you  made  an  effort 
to  get  that  waste  water  used  by  the  lower  users? 

A.  T  did  not  'make  an  effort';  1  did  do  it,  except 
in  a  very  few  cases  where  it  was  imi)ossible. 

O.  Do  you  feel  confident  you  did  that  over  the 
whole  area — accomplished  the  purpose  you  attempted 
to? 

A.     Yes,   sir. 

Q.     That  was  in  both  years? 

A.     Yes,  sir." 


—126— 

It  will  be  borne  in  mind  that  the  water  duty  for 
July,  1920,  with  complete  utilization  of  run-oft"  as  de- 
scribed by  witness  Shepard,  was  .936  acre  feet  per 
acre,  a  figure  calling  for  a  total  season's  duty  of  4.64 
acre  feet  per  acre,  which  we  claim  is  a  proper  and 
reasonable  duty  for  the  area  taken  as  a  whole. 

Counsel  admit  that  if  contiguous  tracts  were  handled 
together  under  one  control,  the  run-off  from  the  upper 
farms  to  the  lower  could  be  used  on  the  latter  without 
waste.  (Plffs'  Op.  Brief,  p.  54.)  The  testimony  in 
this  case  shows  that  the  farmers,  though  having  sepa- 
rate ranches  and  rights,  have  come  to  the  practice 
of  conducting  their  irrigation  co-operatively,  thus 
effecting  practically  the  same  economy  of  use  as  coun- 
sel admit  w^ould  occur  under  unity  of  control  and  man- 
agement. 

There  is  nothing  in  the  case  opposed  to  the  testi- 
mony of  witness  Shepard  as  to  the  complete  utilization 
of  run-off,  except  the  unfounded  assertions  of  counsel 
for  plaintiffs. 

(c)  Plaintiffs'  "mute  zmtnesses^'  give  an  exag- 
gerated idea  of  zvaste.  We  refer  to  the  numerous 
photographs  put  in  evidence  by  plaintiffs  to  show  ex- 
cessive use  or  waste  of  water  on  the  Bishop  Creek 
area.  There  must  be  some  waste  of  water  where  the 
flow  of  a  creek,  upon  issuing  from  the  mountains,  is 
directly  applied  to  a  district  composed  of  farms  lying 
upon  the  slope  of  the  creek  delta.  Water,  at  best,  is 
hard  to  control,  but  given  a  rushing  supply,  affected  by 


—127— 

artificial  disturbances  which  are  not  timed  with  any 
regard  to  the  needs  or  operations  of  the  irrigators, 
and  the  difficulty  of  keeping  down  waste  is  consider- 
able. Plaintififs  claim  that  during  the  years  1914  to 
1918  they  have  diverted  and  impounded  in  their  res- 
ervoirs the  waters  of  Bishop  Creek  during  the  high 
months  up  to  the  capacity  of  such  reservoirs,  and  have 
drawn  off  and  released  the  water  so  stored  '*at  such 
times  and  in  such  quantities  and  in  such  manner  as 
required  by  the  operation  of  the  plaintiffs'  power 
plants,"  subject  only  to  a  90  second-foot  equation  for 
the  use  of  the  farmers,  and  during  such  period  have 
fluctuated  and  varied  "the  discharge  of  all  the  waters 
of  Bishop  Creek  used  through  said  power  plants  as 
required  by  the  operation  thereof  and  the  demands 
thereof."  (Plffs'  Op.  Brief,  p.  140.)  The  evidence 
for  plaintiffs  directed  attention  particularly  to  the  man- 
ner in  which  the  farmers  used  the  water  during  the 
year  or  so  just  preceding  the  commencement  of  this 
suit.  With  plaintiffs  manipulating  the  flow  of  the 
creek  to  suit  their  own  purposes,  as  claimed  by  them, 
with  fluctuations  produced  by  the  ordinary  operation 
of  their  i)lants,  and  with  the  tremendous  fluctuations 
caused  by  interruptions  on  their  ])ower  system,  no  one 
reasonably  could  expect  the  irrigators,  even  by  the 
greatest  care  or  ingenuity,  to  so  handle  their  water 
supply  from  the  creek  as  to  entirely  offset  the  effect 
thereon  produced  by  such  p(j\ver  o])erations. 

Mr.  Means  ])roduced  and  pul   in  evidence  a  book  of 
regulations    of    an    irrigation    (Hstrict,    which    he    had 


—128— 

cited  as  an  example  of  efficiency  in  the  management 

of  a  water  supply,  and  one  of  these  rules  read  thus 

[Tr.  p.  2707] : 

"  'Water  must  be  used  continuously  by  the  irrigator 
throughout  the  period  of  the  run,  both  day  and  night. 
If  water  is  wasted  or  improperly  used,  the  superin- 
tendent may  refuse  further  delivery  of  water  until 
the  cause  of  waste  is  removed.'  " 

And  then  the  witness  testified  [Tr.  p.  2707]  : 

"O.  What  would  vou  do  in  a  case  like  this,  that  is, 
in  a  district  such  as  the  Bishop  area,  where  the  flow 
of  water  is  affected  by  the  fluctuations  caused  by  the 
power  plants  above  preventing  continuous  use? 

A.     I  would  try  to  have  those  fluctuations  corrected. 

O.  Will  you  say  what  the  power  companies  ought 
to  do  in  that  respect?  You  can  see  how  the  observance 
of  that  rule  in  a  territory  like  this  might  be  made 
difficult  if  there  was  the  factor  of  power  companies 
on  the  stream  above  to  be  considered. 

A.  I  appreciate  that  fluctuations  will  make  any 
operation  at  night  more  difficult." 

However,  we  are  convinced  that  the  chief  waste  of 
water,  resulting  from  a  disturbance  of  the  stream  flow 
through  power  operations,  is  on  account  of  the  neces- 
sity of  repeating  irrigations  where  the  use  of  water 
is  interrupted,  thus  contributing  to  loss  through  deep 
percolation. 

Plaintiffs  put  in  evidence  many  photographs,  but  no 
measurements  or  other  definite  data,  to  show  waste  of 
water  in  roads.  Any  substantial  amount  of  water  in 
a  road  is  calculated  to  be  impressive,  even  though  it 
really  does  not  amount  to  enough  to  irrigate  a  town 
lot.     Such  apparent  waste  in  the  Bishop  area  is  con- 


—129— 

sistent  with  reasonable  care  in  the  distribution  and  use 
of  water  by  the  farmers  generally.  Of  course,  some 
carelessness  is  to  be  expected  under  the  most  perfect 
system,  and  then  on  a  larg-e  area  frequent  accidents 
will  occur  to  cause  waste  or  loss  of  water.  Gophers 
will  cause  waste,  and  on  lands  affected  by  heavy 
gradients,  such  as  those  under  Bishop  Creek,  even  a 
small  head  of  water  escaping  from  a  ditch  will  soon 
cover  a  road  and  make  an  appearance  of  considerable 
loss.  As  a  matter  of  fact,  the  loss  may  be,  and  gen- 
erall}^  is,  very  small,  and  we  are  convinced  that  the 
waste  of  water  in  roads  in  the  Bishop  Creek  region 
is  infinitesimal.  Ditches  run  along  in  close  proximity 
to  the  roads,  and  water  escaping  from  a  field  into  the 
roads  soon  gets  back  into  a  channel  or  lateral  and 
becomes  available  for  use  lower  down. 

As  already  pointed  out,  Bishop  Creek  area  presents 
the  condition  of  unlimited  lands  and  a  limited  water 
supply,  automatically  correcting  waste.  Moreover,  as 
the  evidence  shows,  the  demand  for  water  is  so  closely 
adjusted  to  the  supply  that  from  time  to  time  during 
the  past  thirty  or  more  years  shortages  have  been  ex- 
perienced by  the  farmers  leading  to  injury  and  loss 
of  crops,  and  alsc;  provoking  action  by  them  to  inter- 
rupt the  diversions  of  junior  appropriators.  In  this 
situation,  it  is  a  reasonable  presumption  that  self- 
interest  and  ordinary  i)rudencc  would  lead  the  irri- 
gators under  the  Bishoj)  Creek  supply  to  supi)ress  and 
prevent  practices  involving  substantial  waste  of  water. 
If   the   loss   of    water   through    the   escape    into    roads 


—130— 

or  other  places  exposed  to  public  view,  were  consid- 
erable, the  farmers,  knowing  from  experience  the 
hardships  resulting  from  a  short  supply,  could  be  de- 
pended on  to  suppress  any  such  waste. 

(d)  Waste  exceeds  beneficial  use,  is  another  im- 
proven  assertion  of  counsel  for  plaintiffs.  (Plfifs'  Op, 
Brief,  p.  60.)  On  this  basis,  not  more  than  53  second 
feet,  instead  of  106  second  feet,  should  have  been  used 
in  July,  1920,  to  accomplish  the  irrigation  of  7,028 
acres.  One  hundred  and  six  second  feet  had  been  de- 
termined to  be  necessai-y  for  such  purpose  by  usage 
extending  over  more  than  thirty  years,  and  this  cast 
cannot  be  met  or  overcome  by  mere  reckless  statements 
of  counsel. 

over  more  than  thirty  years,  and  this  fact  cannot  be 
met  or  overcome  by  mere  reckless  statements  of 
counsel. 

Counsel  say  that  the  evidence  indicates  that  the 
Bishop  Creek  irrigators  are  indolent  and  indififerent 
in  the  use  of  water,  implying  that  their  love  of  ease 
prevents  them  from  utilizing  the  supply  when  they 
should  be  busy  with  irrigation.  Pltffs'  Op.  Brief,  p. 
64.)  Such  assertions  are  not  justified  by  the  evidence, 
nor  called  for  on  any  ground,  and  we  leave  them  to 
fall  by  their  own  weight,  except  that  we  will  call  atten- 
tion to  the  fact  that  plaintiffs  did  not  prove  that  any 
part  of  the  supply  was  allowed  to  pass  unused  from 
the  area  irrigated  from  Bishop  Creek. 


—131— 

IX. 

Extension  of  Stipulation  for  Arbitration. 

1.  Coyote  Creek  is  a  natural  tributary  of  Bishop 
Creek.  Some  years  ago.  Coyote  Creek  was  diverted 
from  its  natural  channel  for  the  irrigation  of  lands 
about  six  miles  south  of  Bishop  Creek.  The  creek  is 
about  nine  miles  long  and  the  point  of  such  diversion 
is  about  four  miles  from  its  junction  with  Bishop 
Creek.  Even  if  such  diversion  has  ripened  into  a 
right  against  the  appropriators  and  riparian  owners 
on  Bishop  Creek,  yet  the  make  of  the  stream  below 
the  point  of  diversion  and  its  flow  during  the  non- 
irrigating  season  are  still  part  of  the  Bishop  Creek 
supply.  The  make  of  the  stream,  resulting  from  the 
early  run-off,  is  of  special  im^portance  to  Bishop  Creek 
users,  and  their  interests  particularly  require  that 
their  rights  to  the  same  shall  be  recognized  and  pro- 
tected. The  evidence  does  not  show  the  quantity  of 
water  in  Coyote  Creek  which  is  subject  to  the  alleged 
rights  of  plaintiffs.  The  only  measurements  on  Coyote 
Creek  introduced  in  evidence  were  made  at  its  junction 
with  Bishop  Creek  [Tr.  p.  2768],  and  these  included 
the  entire  flow  of  the  stream  at  that  point.  This  sit- 
uation was  noted  during  the  last  moments  of  the  hear- 
ing, and  it  was  rather  understood  that  the  engineers 
of  the  parties  might  get  together  and  agree  on  the 
data  requisite  for  including  Coyote  Creek  in  the  adju- 
dication. We  are  pre])are(l  to  co-operate  with  the 
other  side  in  that  regard. 


—132— 

2.  Birch  Creek  rises  in  the  area  northerly  from 
Bishop  Creek  and  has  been  diverted  by  the  companies 
from  its  natural  channel  into  that  creek  so  that  its 
waters  may  be  dropped  through  the  companies'  gen- 
erating plants.  The  alleged  right  of  the  conipanies  to 
so  divert  Birch  Creek  is  based  solely  upon  a  deed  to 
the  Turner  Ranch  and  permits  or  licenses  issued  by 
the  State  Water  Commission.  The  companies  claim 
that  long  years  ago  Birch  Creek  was  diverted  from  its 
natural  channel  by  a  ditch  constructed  so  as  to  inter- 
cept the  flow  of  the  creek  and  convey  it  to  and  onto 
such  Turner  Ranch,  and  that  such  conveyance  carried 
that  appropriation  as  appurtenant  to  said  ranch.  De- 
fendant Powers  claims  a  right  by  appropriation  to  25 
miner's  inches.  This  appropriation  was  above  the 
Turner  Ranch.  The  companies,  upon  the  strength  of 
the  Turner  deed,  diverted  the  waters  of  the  creek 
above  the  Powers  appropriation.  Below  the  Turner 
Ranch  are  several  farms,  one  belonging  to  defendant 
Allen  Matlick,  which,  for  a  great  many  years  imme- 
diately preceding  the  diversion  of  the  creek  by  the 
companies,  used  water  from  the  creek  through  the  so- 
called  Turner  ditch.  The  owners  of  such  farms,  other 
than  Matlick,  are  not  joined  as  defendants  in  this  suit. 
However,  as  we  are  advised,  all  such  owners,  includ- 
ing defendant  Matlick,  are  willing  that  their  rights 
in  Birch  Creek  should  be  passed  on  and  settled  by  the 
arbitrator.  The  stipulation  for  arbitration  only  in- 
cludes Bishop  Creek,  but  we  feel  sure  no  difficulty 
would  be  experienced  in  bringing  these  outside  inter- 


—133— 

ests  on  Birch  Creek  into  a  stipulation  settlino-  the  facts 
and  submitting  their  case  to  the  arbitrator,  if  plain- 
tiffs are  willing.  With  such  a  stipulation  we  would 
wish  to  submit  a  citation  of  authorities,  only  a  few  in 
number,  bearing  on  the  peculiar  situation  in  which  the 
interests  on  the  Birch  Creek  supply,  below  the  Turner 
Ranch,  ha\'e  been  placed  by  the  diversion  of  the  com- 
panies. Counsel  for  plaintiffs  could,  we  believe,  have 
such  stipulation  with  the  authorities,  in  time  for  their 
reply  to  this  brief. 

3.  The  Elmer  Bodle  estate  owns  20  acres  in  the 
Bishop  Creek  area,  which  is  not  included  in  this  suit. 
It  is  described  as  that  part  of  the  northeast  quarter 
of  the  southwest  quarter  of  section  11.  township  7 
south,  range  32  east.  M.  D.  B.  &  M.,  lying  easterly  of 
and  below  the  Owens  River  Canal.  Said  Bodle  died 
prior  to  the  commencement  of  this  suit.  Letters  of 
administration  on  his  estate  have  recently  been  taken 
out.  A  stipulation  can  be  obtained  from  the  adminis- 
trator to  include  this  property  in  the  arbitration,  if 
agreeable  to  plaintiffs.  As  this  property  is  irrigated 
from  Bishop  Creek,  and  is  adjacent  to  lands  in  this 
suit,  lying  easterly,  northeasterly  and  northerly,  which 
are  included  in  the  stipulation  of  ])riorities,  we  sug- 
gest its  inclusion  in  this  suit  and  in  such  stipulation, 
in  the  interest  of  a  complete  adjudication  of  Bishop 
Creek  rights. 

4.  Two  hundred  and  three  acres,  in  the  town  of 
Bishop,    constituting   part    of    the    old    irrigated    area 


—134— 

under  Bishop  Creek,  and  still  served  by  separate 
ditches  from  that  creek,  are  not  joined  in  this  suit. 
This  acreage  is  exclusive  of  the  lands  in  that  town, 
which  are  supplied  from  the  municipal  water  system. 
The  owners  of  the  parcels  making-  up  the  203  acres 
can  be  easily  reached  and  brought  into  the  arbitration, 
so  that  their  rights  might  be  adjudicated  on  the  evi- 
dence already  submitted,  if  plaintiffs  will  agree. 

X. 

Additional   Reservoirs. 

1.  Reservoir  for  dmrnal  regulation.  With  no  reg- 
ulating reservoir  between  the  power  plants  and  the 
heading  of  the  Bishop  Creek  irrigating  system,  fluc- 
tuations of  stream  flow  caused  by  power  operations 
directly  affect  the  heads  at  points  of  diversion,  and 
this  condition  should,  on  reasonable  and  .equitable 
grounds,  be  remedied  by  the  companies.  It  can  be 
accomplished  at  a  moderate  cost,  approximately 
$60,000  as  estimated  by  Engineer  McCarthy.  [Tr. 
p.  2567.]  Continuation  of  such  interference  with  an 
essential  industry  which  existed  long  prior  to  the  ad- 
vent of  the  companies,  when  it  could  be  avoided  at  a 
trifling  expense  compared  with  the  injury  caused,  is 
an  outrage. 

General  Agent  Criddle,  recognizing  that  power  oper- 
ations affected  the  flow  of  the  stream  to  such  an  ex- 
tent injurious  to  the  irrigators  as  to  call  for  remedial 
action  by  his   employers,   stated,   in  his   letter   to  the 


—135— 

association,  in  1913,  "I  hope  before  next  season  we 
may  be  able  to  work  out  some  method  by  which  the 
daily  fluctuations  can  be  corrected."     [Tr.  p.  2650.] 

Chief  Engineer  Poole  testified  that  he  had  consid- 
ered and  made  estimates  upon  the  installation  of  a 
regulating  reservoir  below  the  power  plants  which 
would  obviate  daily  fluctuations.     He  further  stated : 

"O.  But  it  is  feasible,  by  building  a  regulating 
reservoir  below,  to  regulate  the  stream  and  obviate 
the  fluctuations  due  to  daily  operations? 

A.     I  should  say,  very  largely."     [Tr.  p.  129.] 

No  method  of  correction  has  ever  been  worked  out 
by  the  companies,  and  power  fluctuations  still  annoy 
and  damage  the  irrigators  in  3^ears  of  short  supply. 

2.  Reservoirs  for  yearly  regulation.  The  present 
reservoirs  of  the  companies  handle  only  a  portion  of 
the  creek  run-oft'.  The  result  is  that,  while  the  farmers 
get  some  more  water  than  natural  flow  in  the  early 
spring  and  the  fall,  any  advantage  from  this  condition 
is  largely  nulHfied  in  short  years  by  the  curtailment 
of  their  summer  supply.  Under  average  water  con- 
ditions the  storage  of  the  companies,  as  at  present 
provided,  is  of  no  advantage  to  the  farmers  in  the 
summer  time.  In  a  word,  it  is  so  limited  as  to  injure 
them  in  short  years  and  to  give  them  Httlc  or  no  bene- 
fit in  normal  years. 

The  mass  study  of  witness  Clausen  on  P)ish()p  Creek 
disclosed  in  a  striking  manner  the  possibilities  of 
storage  on  that  stream.  [Tr.  pp.  2.H8-.S2.]  it  was 
based   on   the   sixteen   vears'   records   of   stream    How, 


—136— 

which  are  in  evidence  in  this  case.  (Defendants* 
Ex.  D.)  In  this  study  the  requirements,  in  acre  feet, 
for  irrigation  other  than  on  Hillside  lands,  adjusted 
in  accordance  with  corrections  of  acreage  served, 
which  an  examination  of  the  evidence  has  shown  to 
be  proper,  were  assumed  to  be  as  follows:  April  1-15, 
1590;  April  16-30,  2490;  May  1-15,  3180;  May  16-31, 
3808;  June,  7740;  July,  8021;  August,  8021;  Septem- 
ber 1-15,  2760;  September  16-30,  2142. 

On  the  basis  of  unlimited  storage,  Mr.  Clausen 
showed  that,  after  providing  for  the  above  irrigation 
schedule,  and  also  providing  10  second  feet  for  the 
Hillside  lands  during  the  irrigating  season  and  90 
second  feet  for  power  operations  during  the  rest  of 
the  year,  a  surplus  in  excess  of  178,000  acre  feet  would 
have  been  accumulated. 

On  the  basis  of  total  storage  of  41,000  acre  feet, 
or  19,400  acre  feet  in  excess  of  present  storage,  pro- 
vision would  have  been  made  for  all  of  the  above  re- 
quirements, with  a  wastage  in  excess  of  178,000  acre 
feet. 

On  the  basis  of  total  storage  of  35,400  acre  feet,  or 
13,800  acre  feet  in  excess  of  present  storage,  provision 
would  have  been  made  for  irrigation  requirements, 
other  than  on  Hillside  land,  and  for  90  second  feet  for 
power  operations  during  the  rest  of  the  year.  Owing 
to  corrections  of  defendants'  acreage,  which,  as  else- 
where noted,  an  examination  of  the  evidence  has  shown 
to  be  proper,  the  total  storage  for  such  provision  would 
be  somewhat  less. 


—137— 

It,  therefore,  must  be  concluded  that,  upon  the  prin- 
ciple of  intensive  development  on  streams  devoted  to 
power  and  irrigation  uses,  which  was  advocated  by- 
Mr.  ]\Ieans,  the  installations  of  the  power  companies 
on  Bishop  Creek  may  properly  be  indicted  as  utterly 
inadequte,  wasteful  and  inefficient  in  themselves,  and, 
at  the  same  time,  extremely  detrimental  to  the  irriga- 
tion interests  below. 

XL 
Ways  That  Are  Dark  and  Tricks  That  Are  Vain. 

The  conduct  of  the  power  interests  in  the  early  days 
of  their  operations  on  Bishop  Creek  was  delightful. 
So  gentle,  considerate,  and  deferential  it  was  toward 
the  people  from  whom  they  wanted  and  needed  help 
and  favor.  But  those  interests  were  outside  then, 
and  they  wanted  to  get  in. 

The  agreement  between  the  power  company  and 
the  association,  made  in  1906  [Tr.  p.  17],  which  was 
supposed  to  initiate  the  company's  policy  to  impound 
only  the  "surplus  and  waste  waters"  of  Bishop  Creek 
for  power  generation,  and,  at  the  same  time,  give  the 
irrigators  a  better  supply  for  their  crops,  will  not  soon 
be  forgotten  by  the  water  users  on  that  creek.  Neither 
will  they  soon  forget  the  conference  with  Mr.  Chap- 
pelle,  of  the  power  companies,  in  1908,  when  he  said, 
''I  want  you  gentlemen  to  feel  that  we  are  here  and 
still  with  you  in  anything  you  can  sustain  in  the  build- 
ing up  of  water  for  the  benefit  of  the  association." 
Surely,  they  will  always  remember  his  words  on  that 


—138— 

occasion  when,  after  consigning-  the  Hillside  Ranch» 
as  a  trouble-maker,  to  perdition,  he  said:  "I  want 
you  to  feel  we  are  trying  to  work  out  a  proposition. 
You  command  our  legal  department  and  engineering- 
department  and  can  in  time  command  the  treasury 
of  this  company  to  a  certain  extent,  which  we  think 
is  sufificient  to  secure  your  confidence." 

And  then,  in  1913,  the  attorney  of  the  companies 
wrote  a  letter  which  will  long-  linger  in  the  memories 
of  residents  on  Bishop  Creek,  for  it  was  in  that  con- 
ciliatory message  that  reference  was  made  to  the  "sur- 
plus and  waste  waters"  agreement  of  1906  and  assur- 
ance was  given  that  the  writer's  clients  intended,  "not 
only  to  respect  the  rights  of  these  water  users,  but  to 
assist  and  co-operate  with  them  in  every  reasonable 
way,''  etc. 

This  amiable  demeanor  of  the  interests  continued 
until  1919,  and  then  suddenly  there  was  a  marked 
change  of  attitude.  The  companies  ceased  to  be 
gentle  and  considerate.  They  ceased  to  respect  su- 
perior rights  in  the  waters  of  Bishop  Creek  and  turned 
savagely  on  the  community  which  had  encouraged  and 
helped  them.  They  felt  that  by  quiet  waiting  they 
had  gained  a  position  from  which  they  could  safely 
attack  those  who  had  befriended  them,  and,  accord- 
ingly, they  cut  down  the  water  supply  when  most 
needed  by  the  farmers  and  thus  provoked  them  to 
action  in  defense  of  their  rights  and  property.  And 
this  suit  resulted.  At  the  hearing,  the  proceedings,  con- 
trolled by  the  arbitrator,  were  all  in  the  best  possible 


—139— 

feeling,  but  the  opening  brief  of  the  companies  pours 
upon  the  heads  of  the  irrigators  a  veritable  deluge  of 
criticism  and  abuse.  Here  is  a  partial  collation  of  the 
terms  employed  by  counsel  for  plaintiffs  in  what  they 

call  a  brief: 

Pages  of  Plffs.' 
Op.  Brief. 

Robbing  and   ruining 43 

Grossest  neglect  and  wastefulness 44 

Impaled  on  their  own  petard 45 

Tangled  web  of  irrigation  affairs 45 

Office  of  zanjero  is  a  farce 49 

Absolutely    innocent    of    any    embarrass- 
ment      50 

Consumption    is    frightful 53 

Put  his  foot  in  a  trap 58 

Frontier  ideas  are  one  with  buffalo  and 

the   Indian    61 

Practice   painless    agriculture 64 

Stupid,  nonsentical,  arbitrary  and  tyranni- 
cal mismanagement 67 

Silent  hands  that  guide  its  destiny 70 

Vexatious,  unreasonable,  overbearing  and 

dictatorial    71 

Expose  their  flank  to  a  raking  fire 76 

Unreasonable   and    nonsensical   and    their 

foolish  whims  should  not  be  catered  to.    77 
Waste,   extravagance  and  maladministra- 
tion         78 

Rare   prophets   who  have   honor   in   their 

own  country   ^^^ 

Claim  everything  in  sight 105 

Impaled  on  one  or  the  other  horn  of  a 

dilemma    ^^^ 

And  so  on,  ad  nauseam 75 


—140— 

The  wolf  is  now  in,  and  his  sheep's  clothing-  is  dis- 
carded. 

The  Bishop  Creek  farmers  went  in  force  to  the 
Hillside  reservoir  on  June  11,  1919.  They  went  not 
to  destroy  the  companies'  property,  hut  to  save  their 
own.  They  went  not  to  get  the  companies'  water,  but 
to  get  their  own.  They  met  their  friend  and  neighbor, 
Rhudy,  there.  They  did  not  wish  violence  and  they 
asked  him  to  release  from  the  reservoir  the  water  they 
needed.  He,  being  a  small  man,  and  knowing"  that  they 
meant  business,  undertook  to  tell  them  when  they  got 
the  quantity  they  specified,  2500  inches.  True  it 
was,  he  was  their  friend  and  neighbor,  but,  at  the 
same  time,  he  was  the  employee  of  the  companies,  and 
they  trusted  him  at  their  risk.  He  testified  as  a  wit- 
ness for  his  employers  and  then,  as  a  bit  of  treachery 
to  his  friends  and  neighbors,  he  tried  to  make  it  ap- 
pear that,  while  they  demanded  and  thought  they  were 
getting  2500  inches  of  water,  as  a  matter  of  fact,  he 
fooled  them  and  only  turned  out  790  inches.  [Tr. 
p.  176.]  His  employers,  as  doubtless  he  said  to  him- 
self, might  rest  assured  that  he  could  be  depended  on 
to  turn  a  trick  in  an  emergency.  He,  of  course,  as 
v/as  his  duty,  reported  the  incident  to  his  employers, 
and,  being  an  engineer,  he  naturally  specified  the  quan- 
tity of  water  which,  at  the  demand  of  the  farmers,  had 
been  released  from  the  reservoir.  What  was  his  re- 
port on  that  point?  The  record  is  silent,  excepting 
what  is  alleged  by  the  companies  themselves  in  their 


—141— 

verified  pleadings.  They  say  in  paragraph  AT  of  the 
original  complaint,  which  was  filed  June  11,  1919,  "the 
defendants  have  ever  since  the  said  11th  day  of  June, 
1919,  continued  to  release  and  cause  to  escape  a  large 
quantity,  to-wit,  a  constant  flow  of  approximately  50 
second  feet  of  water."  In  paragraph  VI  of  their 
amended  complaint,  which  was  filed  August  2,  1919, 
they  allege  that  the  farmers  "released  and  caused  to 
escape  from  the  said  reservoir  a  great  quantity  of 
water,  to-wit,  a  constant  flow  of  approximately  50  sec- 
ond feet  of  the  waters  then  and  there  stored  and  con- 
tained therein." 

The  companies  did  not  get  their  information  from 
the  farmers.     Whose  foot  is  in  the  trap,  now? 

Before  closing,  we  tender  to  the  arbitrator  and 
counsel  for  plaintiffs  our  sincere  apologies  for  the 
great  length  of  this  brief,  although,  on  account  of  the 
mass  of  testimony,  the  great  number  and  magnitude 
of  interests  represented  by  us,  and  the  extreme  impor- 
tance of  the  case  to  our  clients,  it  has  seemed  to  us 
impossible  to  compress  our  argument  within  narrower 
limits. 

In  conclusion,  we  contend : 

1.  That  the  defendants'  rights  by  appropriation  in 
the  waters  of  Bishop  Creek  are  prior  in  time  and  right 
to  any  rights  of  the  plaintiffs,  within  the  limits  of 
discharges,  in  acre  feet,  for  the  use  of  defendants  dur- 
ing the  irrigating  season,  as  follows: 

April  1-15,  1.590;  Ajml  16-30,  2490;  May  1-15, 
3180;  May  16-31,  3808;  June,  7740;  July,  8021;  Au- 


—142— 

gust,  8021;  September   1-15,  2760;   September   16-30, 
2142. 

2.  That  the  riparian  rights  of  defendants  remain 
unimpaired  by  the  use  of  the  waters  of  the  creek  by- 
plaintiffs  other  than  the  surphis  and  waste  waters 
thereof  after  fulfilling  requirements  under  the  sched- 
ule above  stated. 

3.  That  defendants  are  entitled  to  injunctive  relief 
against  the  acts  of  plaintiffs  in  causing  fluctuations  of 
stream  flow  in  Bishop  Creek. 

We,  therefore,  ask  for  judgment  for  defendants  in 
accordance  with  the  above,  and  for  such  additional 
relief  as  to  the  arbitrator  may  seem  just  and  equitable. 

Respectfully  submitted, 

S.  L.  Carpenter, 
V.  G.  Preston, 
W.  H.  Wads  worth, 
BoRDWELL  &  Mathews, 
Attorneys  for  Defendants. 


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—  9  — 
APPENDIX  "B." 


Holdings  and  Use  of  Canal  Stock  on  Lands  of 

Defendants. 

1.  Ozvens  River  Canal  Stock.  The  evidence  showed 
that  10  acres  of  defendant  C.  M.  Dixon,  24  acres  of  de- 
fendant W.  E.  Goodwin,  25  acres  of  defendant  Louis 
'Pauly,  6  acres  of  defendant  R.  J.  Schober,  and  15  acres 
of  defendant  J.  M.  Thomas,  are  irrigated  from  the 
Owens  River  Canal,  while  the  rest  of  the  holdings  of 
these  defendants  have  always  been  irrigated  from 
Bishop  Creek,  excepting  that  defendant  J.  M.  Thomas, 
in  addition  to  the  15  acres  has,  during  the  past  two 
years,  on  account  of  shortage  of  the  creek  supply,  also 
irrigated   25   acres   from  the   canal. 

2.  Bishop  Creek  Canal  et  al.  Stock.  The  following- 
study  is  made  on  the  assumption  that  the  stock,  when 
used,  was  applied  on  the  basis  of  one  share  to  the  acre, 
and  that  where  the  holder  of  stock  had  more  shares 
than  acres,  he  obtained  one-half  his  supply  from  the 
canal  and  one-half  from  the  creek,  and  where  the  holder 
had  less  shares  than  half  his  acreage,  the  deficiency  of 
supply,  after  applying  the  stock,  was  all  obtained  from 
the  creek.  The  results  of  such  study  are  reflected  in 
columns  6  and  7  of  Appendix  "A." 

(1)  L.  J.  Bodie;  120  acres,  parcel  #1  [Tr.  p. 
1528]: 

Has  75  shares  of  Bishop  Creek  Canal  stock.  Testi- 
fies that  he  only  claims  100  acres  in  this  suit,  and  that 


—10- 

he  uses  25  shares  of  his  75  shares  of  stock  on  the  20 
acres  for  which  he  makes  no  claim  for  Bishop  Creek 
water.  [Tr.  p.  1536.]  We  have,  therefore,  placed  50 
acres  under  Bishop  Creek. 

(2)  J.  A.  Cashbaug-h;  parcel  #1,  87.4  acres  [Tr. 
p.  1814],  and  parcel  #2,  25  acres  [Tr.  p.  1912]  : 

On  parcel  #1,  no  canal  stock  is  used.  He  irrigates 
solely  with  Bishop  Creek  water. 

On  parcel  #2,  he  claims  no  Bishop  Creek  water,  but 
irrigates  with  24  shares  of  canal  stock. 

(3)  J.  A.  and  W.  A.  Cashbaugh  and  Cashbaugh 
Estate;  400  acres  [Tr.  p.  1918] : 

Testified  by  J.  A.  and  W.  A.  Cashbaugh  that  644 
acres  are  owned  in  this  "bunch,"  400  acres  in  the  suit 
and  244  acres  not  included  in  the  suit.  Of  the  400 
acres  in  the  suit,  there  are  80  acres  for  which  no  right 
in  Bishop  Creek  is  claimed  and  44  acres  which  have 
never  been  irrigated,  leaving  an  irrigated  area  of  276 
acres,  in  this  suit,  for  which  Bishop  Creek  right  is 
claimed.  Of  the  244  acres  outside  the  suit,  124  acres 
are  irrigated  from  the  canal. 

The  Cashbaughs  have  194  shares  of  Bishop  Creek 
Canal  stock,  which  they  use  on  the  400  acres  of  irri- 
gated land,  being  276  acres  in  the  suit  and  124  outside. 
Since  their  only  source  of  supply  for  the  124  acres 
outside  this  suit  is  Bishop  Creek  Canal,  we  have  as- 
signed 124  shares  of  this  stock  to  the  124  acres  and  the 
remaining  70  to  the  276  acres,  leaving  a  balance  of  206 
acres  irrigated  from  Bishop  Creek. 


—11— 

(4)  W.  A.  Compton;  120  acres  fTr.  p.  1762]  : 
Has  7  acres  of  land  never  irrigated,  leaving  113  acres 

irrigated  from  Bishop  Creek  and  Bishop  Creek  Canal. 
Has  125  shares  of  canal  stock.  The  inception  of  his 
right  is  in  Bishop  Creek  [see  Kinsley  testimony,  Tr.  p. 
2243]  in  1887,  and  Bishop  Creek  water  has  been  used 
since.  We  have  assigned  an  equal  acreage  to  both 
Bishop  Creek  and  Bishop  Creek  Canal. 

(5)  Anna  M.  Currie ;  80  acres  [Tr.  p.  1681 J  : 

Has  1  acre  never  irrigated,  leaving  79  acres  irri- 
gated. Has  38  shares  of  Bishop  Creek  Canal  stock, 
leaving  41  acres  irrigated  from  Bishop  Creek. 

(6)  John  A.  Dehy:  400  acres  [Tr.  p.  1962]  : 

Has  400  acres;  60  acres  under  Farmers'  Ditch,  15 
acres  cut  off  by  Owens  River,  and  10  acres  under  the 
Rawson  Canal,  leaving  315  acres  irrigated.  He  has 
117  shares  of  Bishop  Creek  Canal  stock,  leaving-  198 
acres  irrigated  from  Bishop  Creek, 

(7)  Katherine  Dehy;  60  acres  [Tr.  ]).  1079]  : 

Has  40  acres  under  Farmers'  Ditch  and  40  acres  irri- 
gated with  Bishop  Creek  water.  No  part  of  the  former 
40  acres  has  ever  been  irrigated  from  Bishop  Creek, 
but  5  acres,  never  irrigated,  does  lie  within  the  40  acres 
under  the  Farmers'  Ditch. 

Note:  Plaintiffs'  Oi)ening  Brief  (p.  96)  erroneously 
assesses  said  5  acres  against  the  40  acres  served  from 
Bishop  Creek. 

(8)  Ben  R.  Davis;  41  acres  ['I^r.  ]).  20101  : 

Has  2  acres  land  never  irrigated,  leaving  39  acres 
irrigated.     Has  50  shares  of  stock.     Inception  of  right 


—12— 

in  Bishop  Creek  [Kinsley  testimony,  Tr.  p.  2246]  and 
same  acreage  irrigated  now  as  then.  We  have  assigned 
50%  of  this  acreage  to  Bishop  Creek. 

(9)  J.  M.  Garner;  132  acres  [Tr.  p.  1480]  : 
Testifies  that  he  uses  Bishop  Creek  Canal  stock  on 

only  14  acres  and  irrigates  the  balance  of  118  acres 
from  Bishop  Creek. 

(10)  G.  W.  Garner;  132  acres  [Tr.  p.  1843]  : 
Testifies  he  uses   Bishop  Creek   Canal   stock  on   82 

acres  and  Bishop  Creek  water  on  50  acres. 

(11)  Bertha  I.  Garner;  125  acres  [Tr.  p.  1491]  • 
All  fonnerly  irrigated  from  Bishop  Creek  since  prior 

to  1887.  [Testimony  of  Yandell,  Tr.  p.  2363,  and 
Clarke,  Tr,  p.  2418].  Land  in  two  parcels,  parcel  1  of 
80  acres  and  parcel  2  of  45  acres.  Has  ZlVz  shares  of 
Bishop  Creek  Canal  stock.  Uses  Bishop  sewage  water, 
under  contract  with  town  of  Bishop,  on  a  portion  of 
parcel  2,  the  remainder  thereof  being  irrigated  from 
Bishop  Creek  and  Bishop  Creek  Canal.  No  water  from 
the  septic  tank  ever  used  on  parcel  1  of  80  acres.  The 
water  from  Bishop  sewer  system  comes  from  Bishop 
Creek.  The  use  of  such  sewage  water  makes  a  situation 
different  from  other  cases  studied,  and  would  seem  to 
call  for  a  somewhat  different  rule.  We  have  deducted 
37.5  acres  for  the  canal  stock,  leaving  87.5  acres  under 
Bishop  Creek. 

(12)  Chas.  Hartwig;  80  acres  [Tr.  p.  1999]  ; 
Has  7i^  shares  of  Bishop  Creek  Canal   stock.     Has 

used  Bishop  Creek  water  since  prior  to   1887    [Testi- 


—13— 

mony  of  Kinsley,  Tr.  p.  2248,  and  Clarke,  Tr.  p.  2422], 
and  is  still  using  it.  We  have  assigned  42  acres  to 
Bishop   Creek. 

(13)  Mary  E.  B.  Leidy;  240  acres  [Tr.  p.  2053]  : 
Has  240  acres.     Claims  Bishop  Creek  water  for  only 

160  acres  and  states  that  only  Bishop  Creek  water  has 
been  used  on  this  160  acres.  Plaintiffs  conceded  pri- 
ority on  this  160,  but,  in  their  brief  (p.  96)  arbitrarily 
apply  58  shares  of  Bishop  Creek  Canal  stock  to  this 
land.  Mrs.  Leidy  has  138  shares  of  such  stock  which 
she  testified  she  only  used  on  the  remaining,  or  easterly, 
80  acres. 

(14)  Lloyd  Marquam;  80  acres  [Tr.  p.  1654]  • 
Has  3  acres  of  land  never  irrigated  and  75  shares  of 

Bishop  Creek  Canal  stock.  Has  been  using  Bishop 
Creek  water  since  1887  [Testimony  of  Kinsley,  Tr.  p. 
2250,  and  Bodle,  Tr.  p.  2290].  50%  of  this  acreage, 
or  38  acres,  is  placed  under  Bishop  Creek. 

(15)  M.  R.  Mayhew;  100  acres  [Tr.  p.  1706]  : 
Has   only    1    acre   of   land   never   irrigated,   and   25 

shares  of  Bishop  Creek  Canal  stock.  Has  been  using 
Bishop  Creek  water  ever  since  1887,  and  prior  [Testi- 
mony of  Kinsley,  Tr.  p.  2248 1.  He,  therefore  ,has  74 
acres  irrigated  from  Bishop  Creek.  Notwithstanding 
the  fact  that  this  defendant  has  only  1  acre  of  dry 
land,  plaintiffs  in  their  brief  assess  75  acres  of  dry  land 
against  him. 


—14— 

(16)  J.  B.  Newian:  80  acres  [Tr.  p.  2396] : 
Claims    a    right    in    Bishop    Creek,    through    China 

Slough,  for  50  acres.  He  has  25  shares  of  Bishop 
Creek  Canal  stock  which  he  also  uses  on  the  50  acres, 
leaving  25  acres  irrigated  from  Bishop  Creek.  A.  A. 
Bowman  [Tr.  p.  2491]  testified  that  this  area  is  irri- 
gated now  substantially  as  in  1887,  and  prior  thereto. 

(17)  H.  G.  Plumlev;  160  acres  [Tr.  p.  1921] : 
Has  160  acres  in  this  suit,  of  which  5  acres  were  sold 

and  5  acres  never  irrigated,  leaving  150  acres  irrigated. 
Has  a  right,  rarely  used,  in  the  Bishop  Creek  Canal 
from  August  15  to  May  1,  of  each  year.  He  depends 
on  Bishop  Creek  for  his  supply.  No  allowance  is  made 
for  his  stock,  and  plaintiits,  in  their  brief  (p.  96) 
concur, 

(18)  George  R.  Shuey;  130  acres  [Tr.  p.  1887]  • 
Has  a  grant  of  100  inches  in  Rawson  Ditch,  which 

was  built  subsequent  to  the  initiation  of  right  therefor 
from  Bishop  Creek.  [Kinsley  estimony,  Tr.  p.  2252.] 
The  Rawson  Ditch,  in  crossing  the  south  fork  of  Bishop 
Creek,  built  a  levee  and  created  what  is  known  as 
"Buckley  Pond."  Mr.  Shuey  is  a  riparian  owner  on 
the  south  branch  of  Bishop  Creek  and  receives  his  sup- 
ply from  Bishop  Creek.  [Tr.  p.  1896.]  We  have  as- 
signed his  total  acreage  to  Bishop  Creek. 

(19)  J.  J.  Sullivan:  100  acres   [Tr.  p.   1903]: 
Has  25  shares  of  Bishop  Creek  Canal  stock,  leaving 

75  acres  irrigated  from  Bishop  Creek  thrcjugh  China 
Slough  and  Kinsley  Ditch. 


-15- 

(20)  Thos.  Summers;  280  acres  [Tr.  pp.  1853  and 
1945]: 

Has  27  acres  of  land  never  irrigated,  leaving  253 
acres  irrigated.  Has  200  shares  of  Bishop  Creek  Canal 
stock.  His  inception  of  rights  in  Bishop  Creek  are 
established  by  Kinslev  [Tr.  pp.  2248  and  2249],  and  he 
and  his  predecessors  have  used  Bishop  Creek  water 
ever  since.  We  have  placed  50%,  or  127  acres,  under 
Bishop  Creek. 

(21)  Wm.  Symons;  160  acres  [Tr.  p.  1934]  : 
Has  5  acres  never  irrigated,  leaving  155  acres  irri- 
gated. While  he  has  912  shares  of  Bishop  Creek  Canal 
stock,  he  has  hundreds  of  acres  of  additional  land,  out- 
side of  the  suit,  to  which  he  applies  this  stock.  Testi- 
fies [Tr.  p.  1941]  that  he  uses  Bishop  Creek  water 
only  on  the  155  acres.  Because  he  holds  Bishop  Creek 
Canal  stock,  plaintiffs,  in  their  brief  (p.  95)  have  as- 
sessed all  his  land  in  this  suit  against  that  source,  even 
while  stipulating  his  priority. 

(22)  Theresa    R.    T.    Teare;    147.5    acres    [Tr.  p. 

1728] : 

Has  9  acres  not  irrigated,  leaving  138.5  acres  irri- 
gated. Has  68  shares  of  Bishop  Creek  Canal  stock, 
leaving  70.5  acres  under  Bishop  Creek.  Kinsley  estnb- 
lishes  priority  of  right  [Tr.  p.  2230 1  : 

(23)  Geo.  W.  Tweedv;  160  acres  [Tr.  p.  1776]  : 
Has  50  shares  of  Bishop  Creek  Canal  stock,  leaving 

110  acres  irrigated  from  Bishop  Creek.  Kinsley  [Tr. 
p.  2253]  establishes  priority.  He  has  owned  this  stock- 
for  two  years   only. 


-16— 

(24)  Thos.  Williams;  220.8  acres  fTr.  p.  984]  : 
Has  51  and  a  fraction  shares  of  Bishop  Creek  Canal 
stock.  Parcel  1  of  said  lands,  containing  164.4  acres, 
is  irrigated  exclusively  from  Bishop  Creek,  and  parcel 
2,  containing  56.4  acres,  was,  up  to  1911,  also  irrigated 
exclusively  from  the  creek.  Since  that  time  parcel  2, 
together  with  an  adjacent  106  acres  not  in  suit,  has 
been  irrigated  partly  from  the  creek  and  partly  from 
the  canal  under  the  51  shares  of  stock.  It  is  fair  to 
assume  that  at  least  the  equivalent  of  56.4  acres,  thus 
having  a  mingled  supply,  is  irrigated  from  Bishop 
Creek. 

Summary. 

1.  The  total  number  of  shares  of  Bishop  Creek 
Canal  stock  actually  applied  to  the  lands  in  the  cross- 
bill receiving  a  mingled  supplv  from  the  creek  and  the 
canal,  is  785.5. 

2.  The  total  acreage  receiving  a  mingled  supply 
from  Bishop  Creek  and  Bishop  Creek  Canal  is  2,020 
acres,  including  1,237  acres  irrigated  since  1887  and 
prior,  and  783  acres  irrigated  in  1887  and  since.  (See 
Columns  6  and  7,  Appendix  **A.") 


— 1 


APPENDIX  "C." 


Prior  Rights  in  Bishop  Creek  Not  Stipulated,  but 

Proven. 


Name. 
L.  J.  Bodle,  Parcel  #2 
M.  E.  Carpenter 
Wm.  Harrah 
A.  Henderson 
L.  B.  Heise 

P.  P.  Keough,  Parcel  #   1 
J.  C.  Kewley 
J.  Neidel 

J.  Schober,  Parcel  #2 
C.  A.  Skinner 
Taber  and  Allison 
W.  P.  Yaney 
I.  A.  McNaUy 
Bishop  Driving  Park 

Ass'n. 
Fred  Callsen 
L.  L.  Leidy 
A.  W.  Nobles 
H.  A.  Nobles 
A.  O.  Sonne 
Paul  E.  Lodge,  'Parcel  #2 
John  G.  Henderson, 

Parcel  #2 
L.J.  Bodle,  Parcel  #1 
Rachel  D.  Brierly 
J.  A.  Cashbaugh,  Parcel 

■H-  A 


Acres.  Transcript 'Pages. 

10  1525-2321-2406-2416 

2.5  1359-2321-2406-2416 

4.5  1122-2321-2406-2416 

40  1223-2321-2406-2416 

5  1356-2321-2406-2416 

[     5  1379-2321-2406-2416 

5.5  1311-2321-2406-2416 

20  1311-2321-2406-2416 

5  1362-2321-2406-2416 

5  1226-2321-2406-2416 

12.5  1958-2321-2406-2416 

66  635-2321-2406-2416 

5  1117-2321-2406-2416 

20  1102-2321-2406-2410 

5  1201-2321-2406-2416 
23  1291-2321-2406-2416 

22.8  665-2321-2406-2416 
.5  2070-2321-2406-2416 

6  1343-2321-2406-2416 
9  1350-2321-2406-2416 

17.9  934-2321-2406-2416 
100  1525-2225-2253-2294 

60  2020-243 1 

83.4         17<)8-2230 


—18- 
J.A.  and  W.A.Cashbaugh 


and  Cashbaugh  Estate 

276 

1918-2254-2297 

Anna  M.  Currie 

79 

1681-2246-2294 

Frank  Clarke 

10 

1336-2350 

W.  A.  Compton 

113 

1762-2243-2294 

Bertha  L.  Deans 

7 

1022-2635-2676 

John  A.  Dehy 

315 

1962-2330-2373 

Katherine  E.  Dehy 

40 

1979-2330-2373 

Ben  R.  Davis 

39 

2010-2246-2294 

Chas.  M.  Dixon 

30 

1466-2354 

G.  W.  Garner 

50 

1843-2358 

J.  M.  Garner 

118 

1480-2358 

Bertha  I.  Garner 

125 

2418-2244-2294-1492 

W.  E,  Goodwin 

6 

1277-2346 

Chas.  Hartwig 

80 

1999-2422-2248-2294 

Lloyd  Marquam 

77 

1654-2250-2290-2294 

Allen  Matlick 

30 

715-2370 

M.  R.  Mayhew 

99 

1706-2248-2294 

J.  B.  Newlan 

50 

2396-2491 

H.  G.  Plumley 

150 

1921-2410 

E.  W.  Powers-Watterson 

Bros. 

216 

2129-2169 

Wm.  Rowan,  Parcel  #2 

95 

408-2338-2524-2634 

R.  J.  Schober 

74 

951-2641 

Geo.  R.  Shuey 

130 

1887-2252-2294 

[.  J.  Sullivan 

100 

1903-2248-2294 

Thos.  Summers 

253 

1853-1945-2248-2294 

J.  R.  Spiker 

80 

1562-2376 

Theresa  R.  C.  Teare 

138-5 

1728-2230-2294 

J.  M.  Thomas 

65 

2035-2668 

Geo.  W.  Tweedy 

160 

1776-2253-2294 

Thos.  Williams 

220.8 

984-2344 

Total  3759.9 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  604  345    9 


Service  of  the  within,  and  receipt  of  a  copy 

thereof,  is  hereby  admitted  this day  of 

April,  A.  D.  1921. 


Attorneys  for  Plaintiffs. 


